Administrative Law Prof Blog

Who Has the Most Influence on the Agency?

Arguably, the low-level managers have more effect on what the agency does and how it treats the constituent population than the high-level appointees, even though Admin law courses usually focus on the top personnel.  This will not be terrible surprising to practitioners who have experience with multiple offices of the same agency, of course.  Yesterday, at an event sponsored by the Partnership for Public Service, Univ. of Illinois-Chicago professor James Thompson explained that "front-line managers" have perhaps the most influence over day-to-day operations of the agency, and therefore should receive a heftier dose of leadership training, etc. This article summarizes the points well, mentioning specific agencies and their approach to training supervisors and managers.

-Dru Stevenson

First Amendment or Detention?

Another U.S. Supreme Court decision to fuel debate in class:  Free Speech or Detention?  What's a High School Principal to do to keep order and stay out of court?  The recent decision reveals the answer is still a roll of the dice as the Court splits again.  See full story in the NY Times and the Decision. 

The Status of FOIA

The Dept. of Justice recently submitted/published its second annual Report on FOIA compliance by federal agencies (warning - this is not for the faint of heart - it's 118 pages of mostly "bureaucratic milestones" and such).  Those interested in FOIA as a research area or for classroom teaching may appreciate the numerous charts and graphs about the number of FOIA requests, the FOIA backlog at different major agencies, etc.

The report has plenty of critics who claim - with some basis - that it whitewashes an serious, ongoing problem.  This article from the Federal Times includes interesting quotes from a number of former agency officials and other FOIA experts who gave interviews delineating problems with the DOJ's report, and with the current state of FOIA affairs generally.  The backlog problem is apparently quite severe, and while the report lauds the major agencies for their administrative steps to address the problem, many of the FOIA requests themselves still continue to go unanswered indefinitely.  This has the attention of Congress - a significant FOIA reform movement seems to be afoot:

In March, the House overwhelmingly passed sweeping legislation (H.R. 1309) to reform the FOIA system despite the Bush administration's contention the bill would impose substantial administrative and financial burdens on agencies. Similar legislation (S. 849) awaits action on the Senate floor, but Sen. Jon Kyle, R-Ariz., has placed a hold on the bill because of the Justice Department's objections.

I confess I have not studied the reform bills yet, but I would like to see more differentiation between FOIA requests by non-profit groups as opposed to those being used for commercial and semi-commercial purposes.  When I worked at the Connecticut AG's Office, for example, we would receive FOIA requests from local litigators who wanted us to compile hundreds - or thousands - of motions and briefs from previous cases, merely to study them in hopes of finding patterns that would betray some overarching strategy about when the government lawyers would seek summary judgment and when they would push for a trial.  The information could then be sold to other firms that litigated regularly against the AG's Office.  It's not that I think the information should be kept secret, but I see a difference between this and the FOIA requests we used to submit when I was a Legal Aid lawyer and we were genuinely trying to improve state welfare services, etc.  If the former type of FOIA request (by a lawyer with paying clients) create a backlog, this can prevent the second type of FOIA requests (which seem more meritorious to me) from being answered. It would be nice if the agencies at least had the explicit freedom to create a two-track FOIA process, one for NGO's and citizen groups, and another for the regulated industry and commercial interests, with the latter backlog not affecting the former.

-Dru Stevenson

Does Regulatory Approval Shield Manufacturers from Product Liability?

The Supreme Court yesterday agreed to hear a case about whether regulatory approval of medical devices shields the manufacturers from state-court product liability claims, according to this article from the Star-Ledger.  Apparently the Bush Administration had asked the Court to deny cert, but it took the case (for next term) anyway.

This could be a landmark case for product liability and regulatory law; other industries, such as auto manufacturers, have been pushing relentlessly for a liability shield whenever they've complied with relevant federal regulations.

-Dru Stevenson

Duke Law Journal: Call For Admin Papers

The prestigious Duke Law Journal has issued a call for papers for its 38th Annual Administrative Law Conference, celebrating the 25th Anniversaries of several of the leading Admin Law cases (Chevron, Chadha, Bowsher, etc.).

The deadline for submitting a prospectus (2,000 words) for proposed topics ia August 20, 2007.  The Conference itself is next February; final drafts of selected essays will be due in early January 2008.

-Dru Stevenson