Administrative Law Prof Blog

Short and plain pleadings, bills of discovery

While not directly on point, I commend to all admin law fans "In Praise Of “Short And Plain” Pleadings After Twombly And Iqbal", on the Drug and Device Law blog of Jim Beck (Dechert LLP) and Mark Herrmann (Jones Day).

Since the federal rules of civil procedure are (unless stated otherwise) transubstantive – a law-professor-type word meaning that the same rules apply regardless of the substantive law involved – everything goes back to the original 1937 language of Rule 8, which governs pleadings. For seventy years, Rule 8 has stated that any complaint “must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief.”

The relevant language – “short and plain” – says nothing about dispensing with factual support for the relevant allegations. How can a plaintiff be “entitled to relief” if no facts support the allegations?
...

What none of Twombly/Iqbal’s critics address – probably because nobody likes to look foolish denying the obvious – are the fundamental economic premises that drove the Court to overrule the extraordinary liberal gloss that Conley put on Rule 8 a half-century ago. Liberal discovery is what killed liberal pleading. That’s pretty obvious from Twombly. Critics of more rigorous interpretations of Rule 8’s “short and plain” pleading standard aren’t likely to get anywhere as long as they completely ignore or at best give short shrift to the elephant that’s in the room.

I recommend reading the comments, especially the authors' 5:18 AM response. Precomplaint discovery is a long-standing equitable procedure (heck, all discovery was originally in equity) that remains available under F.R.C.P. Rule 27. See 26B C.J.S. Depositions § 30; 8 Fed. Prac. & Proc. Civ.2d § 2072. See, also, Bispham, George Tucker. The principles of equity : a treatise on the system of justice administered in courts of chancery. 10th ed. New York, 1922, at 842 et seq. The Making of Modern Law. Gale. 2009. Gale, Cengage Learning. 29 May 2009 <http://galenet.galegroup.com/servlet/MOML?af=RN&ae=F3752432313&srchtp=a&ste=14>. EMM

A "rational basis" challenge survives a 12(b)(6)

On The Volokh Conspiracy blog, Eugene Volokh (UCLA) has posted "A Rare Circuit Case Allowing a "Rational Basis" Challenge To Go Forward". From the opinion:

[T]he plaintiffs have alleged a substantive due process violation sufficient to survive a motion to dismiss for failure to state a claim. Viewing the factual allegations in the light most favorable to the plaintiffs, as we must, the complaint plausibly alleges that the [pit bull ban] Ordinance is not rationally related to a legitimate government interest. Although the plaintiffs may be unable to demonstrate through evidence that the Ordinance is irrational, the complaint makes out a claim for relief.

From Professor Volokh:

Not a huge victory for the plaintiffs, for reasons the quote makes clear -- but still something of a victory, and one that in my experience has been pretty rare, given the Court's view that "In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge [and substantive due process challenge -EV] if there is any reasonably conceivable state of facts that could provide a rational basis for the classification."

EMM

Administrative searches - Wyman revisited

Thomas Young (Staff Attorney, Alexander County (North Carolina) Department of Social Services) has published "Wyman v. James Revisited: Judicial Oversight, Constitutional Rights, and Social Services Investigations" on SSRN. Abstract:    

This article is focused upon administrative searches and seizures undertaken by social services agencies with respect to child welfare complaints. In addition to articulating the past and current state of the law, the article proposes changes to bring about a greater consistency among the federal and state courts in the United States.

The U.S. Supreme Court, in Wyman v. James, 400 U.S. 309 (1971), for the first time considered the issue of the applicability of the Constitution to social services investigations, though it has continued to explore the constitutional implications of the administrative search or seizure. It has not sought to address the issue since that time. Nevertheless, in the intervening thirty-six years, a large number of federal and a handful of state courts have reviewed the constitutionality of social services investigations and, in the process, have tackled the issue of the continued viability of Wyman: whether social workers are state actors for the purpose of the applicability of the Fourth Amendment, whether child welfare investigations constitute a search or seizure, whether a warrant and probable cause is required to conduct a search and whether a social worker special need exception exists to Fourth and Fourteenth Amendment scrutiny.

Given the on-going occurrence of the social services home investigation since Wyman, the need for an articulation of the current state of the law is great. Part One of this article attempts to provide such an articulation, giving an overview of both Fourth and Fourteenth Amendment protections as they apply to all governmental searches. Part Two undertakes a review of the pre-Wyman case law regarding administrative searches, as well as Wyman itself, reviewing finally the post-Wyman case law from both the federal and state courts regarding administrative social services investigations and the applicability of the Fourth and Fourteenth amendments. Part Three of this article reconsiders Wyman in light of the most recent judicial developments and asks the question as to whether the requirement of a warrant and probable cause is appropriate for social services child welfare investigations or whether the Supreme Court's totality of the circumstances rationality test or its Special Needs doctrine may justify the creation of a social worker exception to the general warrant and probable cause requirements incumbent upon most searches and seizures.

EMM

Submission Guide for Online Law Review Supplements

Colin Miller (John Marshall, Chicago) has published his "Submission Guide for Online Law Review Supplements" on SSRN. Abstract:    

This document contains information about submitting essays and articles to general online law review supplements. It covers 19 general online law reviews. This document will be updated on an annual basis and as law schools create new online law review supplements.

EMM

New administrative law articles

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

• Barkow, Rachel E. Institutional design and the policing of prosecutors: lessons from administrative law. 61 Stan. L. Rev. 869-921 (2009). [L]|[W]
• DeLappe, Michelle E. Note. The legality of Washington shoreline development moratoria in the wake of ... (Biggers v. City of Bainbridge Island, 169 P.3d 14, 2007.) 84 Wash. L. Rev. 67-92 (2009). [L]|[W]
• do Coito Cruz, Patricia Marisa. Casenote. Abigail Alliance for Better Access to Developmental Drugs v. Von Eschenbach: is there a right to live? (Abigail Alliance for Better Access to Developmental Drugs v. Von Eschenbach, 495 F.3d 695, 2007, cert. denied, 128 S. Ct. 1069, 2008.) 25 T.M. Cooley L. Rev. 347-379 (2008). [L]|[W]
• Gordon, Matthew. Note. Improving post-approval risk surveillance for drugs: active post-market risk identification. 15 Mich. Telecomm. & Tech. L. Rev. 297-314 (2008). [L]|[W]
• Grimm, Tyler. Student note. Using employer sanctions to open the border and end undocumented immigration. 12 J. Gender Race & Just. 415-438 (2009). [L]|[W]
• Hudson, Blake. The public and wildlife trust doctrines an the untold story of the Lucas remand. 34 Colum. J. Envtl. L. 99-147 (2009). [L]|[W]
• Johnsen, Christopher D. Student article. Fueling the heated debate over global warming: why Florida should follow California's lead in enacting a mandatory cap-and-trade program for greenhouse gases. 38 Stetson L. Rev. 163-203 (2008). [L]|[W]
• Karmel, Roberta S. Should securities industry self-regulatory organizations be considered government agencies? 14 Stan. J.L. Bus. & Fin. 151-197 (2008). [L]|[W]
• King, Nancy J. When mobile phones are RFID-equipped--finding E.U.-U.S. solutions to protect consumer privacy and facilitate mobile commerce. 15 Mich. Telecomm. & Tech. L. Rev. 107-213 (2008). [L]|[W]
• Maggs, Gregory E. A concise guide to the records of the state ratifying conventions as a source of the original meaning of the U.S. Constitution. 2009 U. Ill. L. Rev. 457-496. [L]|[W]
• McKinley, Scott W. Comment. The need for legislative or judicial clarity on the four-fifths rule and how employers in the Sixth Circuit can survive the ambiguity. 37 Cap. U. L. Rev. 171-200 (2008). [L]|[W]
• Nance, Matthew J. Note. The OCC's exclusive visitorial authority over national banks after Clearing House Ass'n v. Cuomo. 87 Tex. L. Rev. 811- 826 (2009). [L]|[W]
• O'Connor, Coyla J. Student article. Childhood obesity and state intervention: a call to order! 38 Stetson L. Rev. 131-161 (2008). [L]|[W]
• Robertson, Brooke E. Note. Expanding the use of supplemental environmental projects. 86 Wash. U. L. Rev. 1025-1052 (2009). [L]|[W]
• Saurer, Johannes. The accountability of supranational administration: the case of the European Union agencies. 24 Am. U. Int'l L. Rev. 429-488 (2009). [L]|[W]
• Schuneman, Micaela. Student note. Seven years of bad luck: how the government's delay in issuing U-visa regulations further victimized immigrant crime victims. 12 J. Gender Race & Just. 465-491 (2009). [L]|[W]

EMM

New presidential memorandum on preemption

There is a summary of the new presidential memorandum on executive policies on preemption and federalism on the Constitutional Law Prof Blog: "President Directs Agencies on Preemption". EMM

State vs. federal regulation, but not preemption

I confess to a fascination with contests between regulatory agencies over which is in control of some activity. However, in a case reported on the Nonprofit Law Prof Blog, "Chicago Nonprofit Argues Charter School Is Private Firm So Federal Government Has Jurisdiction Over Union Certification", the real parties in interest are a nonprofit charter school operator and the teacher's union trying to organize its employees. The decision turns on whether the charter school's teachers are public education employees (and therefore regulated by the state, which doesn't require an election if there are enough union cards signed) or employees of a private contractor (in which case the NLRB controls and an election is required). Fun! EMM

Theory: Unitary executive

Two interesting posts on the Constitutional Law Prof Blog:

"Pildes on Independent Agencies, the Unitary Executive, and Free Enterprise Fund"

"The President's Appointment Power, Separation of Powers, and the Unitary Executive"

Thanks to Steve Schwinn (John Marshall, Chicago) for the pointer. EMM

What is changed in the Statutory Time-Periods Technical Amendments Act of 2009

I thought this might help. I've added the words in [square brackets], taken from the subject lines of the statutes involved.

SEC. 2. AMENDMENTS RELATED TO TITLE 11, UNITED STATES CODE.
Title 11 [Bankruptcy], United States Code, is amended-
(1) in section 109(h)(3)(A)(ii) [Who can be a debtor], by striking ''5-day'' and inserting ''7-day'';
(2) in section 322(a) [Qualification of trustee], by striking ''five days'' and inserting ''seven days'';
(3) in section 332(a) [Consumer privacy ombudsman], by striking ''5 days'' and inserting ''7 days'';
(4) in section 342(e)(2) [Notice], by striking ''5 days'' and inserting ''7 days'';
(5) in section 521(e)(3)(B) [Debtor's duties], by striking ''5 days'' and inserting ''7 days'';
(6) in section 521(i)(2) [Debtor's duties], by striking ''5 days'' and inserting ''7 days'';
(7) in section 704(b)(1)(B) [Chapter 7 - Duties of trustee], by striking ''5 days'' and inserting ''7 days'';
(8) in section 749(b) [Stockbroker liquidation - Voidable transfers], by striking ''five days'' and inserting ''seven days''; and
(9) in section 764(b) [Commodity broker liquidation - Voidable transfers], by striking ''five days'' and inserting ''seven days''.

SEC. 3. AMENDMENTS RELATED TO TITLE 18, UNITED STATES CODE.
Title 18 [Crimes and Criminal Procedure], United States Code, is amended-
(1) in section 983(j)(3) [General rules for civil forfeiture proceedings], by striking ''10 days'' and inserting ''14 days'';
(2) in section 1514(a)(2)(C) [Obstruction of justice - Civil action to restrain harassment of a victim or witness], by striking ''10 days'' each place it appears and inserting ''14 days'';
(3) in section 1514(a)(2)(E) [Obstruction of justice - Civil action to restrain harassment of a victim or witness], by inserting after ''the Government'' the following: '', excluding intermediate weekends and holidays,'';
(4) in section 1963(d)(2) [Racketeer influenced and corrupt organizations - Criminal penalties], by striking ''ten days'' and inserting ''fourteen days'';
(5) in section 2252A(c) [Sexual exploitation and other abuse of children - Certain activities relating to material constituting or containing child pornography], by striking ''10 days'' and inserting ''14 days''; 
(6) in section 2339B(f)(5)(B)(ii) [Terrorism - Providing material support or resources to designated foreign terrorist organizations], by striking ''10 days'' and inserting ''14 days'';
(7) in section 2339B(f)(5)(B)(iii)(I) [Terrorism - Providing material support or resources to designated foreign terrorist organizations], by inserting after ''trial'' the following: '', excluding intermediate weekends and holidays'';
(8) in section 2339B(f)(5)(B)(iii)(III) [Terrorism - Providing material support or resources to designated foreign terrorist organizations], by inserting after ''appeal'' the following: '', excluding intermediate weekends and holidays'';
(9) in section 3060(b)(1) [Arrest and commitment - Preliminary examination], by striking ''tenth day'' and inserting ''fourteenth day'';
(10) in section 3432 [Indictment and list of jurors and witnesses for prisoner in capital cases], by inserting after ''commencement of trial'' the following: '', excluding intermediate weekends and holidays,'';
(11) in section 3509(b)(1)(A) [Child victims' and child witnesses' rights], by striking ''5 days'' and inserting ''7 days''; and
(12) in section 3771(d)(5)(B) [Crime victims' rights], by striking ''10 days'' and inserting ''14 days''.

SEC. 4. AMENDMENTS RELATED TO THE CLASSIFIED INFORMATION PROCEDURES ACT.
The Classified Information Procedures Act (18 U.S.C. App.) is amended-
(1) in section 7(b) [Interlocutory appeal], by striking ''ten days'' and inserting ''fourteen days'';
(2) in section 7(b)(1) [Interlocutory appeal], by inserting after ''adjournment of the trial,'' the following: ''excluding intermediate weekends and holidays,''; and
(3) in section 7(b)(3) [Interlocutory appeal], by inserting after ''argument on appeal,'' the following: ''excluding intermediate weekends and holidays,''.

SEC. 5. AMENDMENT RELATED TO THE CONTROLLED SUBSTANCES ACT.
Section 413(e)(2) of the Controlled Substances Act (21 U.S.C. 853(e)(2)) [Criminal forfeitures] is amended by striking ''ten days'' and inserting ''fourteen days''.

SEC. 6. AMENDMENTS RELATED TO TITLE 28, UNITED STATES CODE.
Title 28 [Judiciary and Judicial Procedure], United States Code, is amended-
(1) in section 636(b)(1) [United States magistrate judges - Jurisdiction, powers, and temporary assignment], by striking ''ten days'' and inserting ''fourteen days'';
(2) in section 1453(c)(1) [District courts; removal of cases from state courts - Removal of class actions], by striking ''not less than 7 days'' and inserting ''not more than 10 days''; and
(3) in section 2107(c) [Time for appeal to court of appeals], by striking ''7 days'' and inserting ''14 days''.

Effective December 1, 2009. EMM

If interpretation depends on the nature of the challenger ...

New on SSRN: "Agency Polymorphism" by Aaron G. Leiderman (student, Columbia). Abstract:    

The Supreme Court is deeply divided over a seemingly straightforward question: When a court interprets a statute in light of some canon of construction that applies to the person before it (A), does that interpretation then control later applications of the statute, even when, for example, the statute is applied to a person (B) who does not trigger the canon? According to the divided Supreme Court in Clark v. Martinez (2005), the answer is yes: the so-called “lowest common denominator” governs. But if B had challenged the statute before A, this would require the court to consider the absent A’s claim when interpreting the statute once and for all. That seems to violate prudential standing limitations. Alternatively, the court might have embraced polymorphism, rejecting B’s interpretation of the statute but reserving the right to interpret the statute differently as applied to A in the future. But this means that the statute’s meaning now turns on the identity of the challenger, which raises a host of constitutional and rule of law concerns. Complicating matters further, how should this dilemma be resolved in the administrative agency context, where courts and agencies partner in statutory interpretation?

Agency Polymorphism exposes and analyzes polymorphism in the administrative state, and argues that within appropriate limits polymorphism is advantageous because it empowers politically-accountable agencies to exercise their policymaking authority and to enforce constitutional norms. The Article also introduces the concept of hybrid polymorphism, in which courts and agencies signal to each other how to resolve future challenges by discrete categories of individuals. In all, even if one shares Justice Scalia’s view that judicial polymorphism is “dangerous,” there are strong reasons to be a pluralist when it comes to the administrative state.

EMM

New administrative law articles

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

• Bibas, Stephanos. Prosecutorial regulation versus prosecutorial accountability. 157 U. Pa. L. Rev. 959-1016 (2009). [L]|[W]
• Elliott, Tobey. A review of the "similar context" rationale for applying Gun Control Act definition of, and evidentiary standard for, willfulness in administrative actions regarding explosives licensing. 33 Okla. City U. L. Rev. 557-571 (2008). [L]|[W]
• Hrebenar, Ronald, Kirk L. Jowers and Audrey Perry. The struggle to regulate the 527s: through the FEC, Congress and the courts. 12 NEXUS 97- 117 (2007). [L]|[W]
• McGill, Emily W. Comment. Penny wise, pound foolish: child welfare agencies as Social Security representative payees for foster children. 58 Case W. Res. L. Rev. 961-977 (2008). [L]|[W]
• Middleton, Katherine J. Note. Danger in 12,008 A.D.: the validity of the EPA's proposed radiation protection standards for the Yucca Mountain nuclear repository. 58 Case W. Res. L. Rev. 933-960 (2008). [L]|[W]
• Rakowski, Kristin L. Branding as an antidote to indecency regulation. 16 UCLA Ent. L. Rev. 1-43 (2009). [L]|[W]
• Waldref, Vanessa. Note. Reagan's National Labor Relations Board: an incomplete revolution. 15 Geo. J. on Poverty L. & Pol'y 285-313 (2008). [L]|[W]

EMM

Improper delegation of power to a nongovernmental body

In her Law of the Land blog, Patty Salkin (Albany) describes a New York court granting a writ of mandamus ordering a town to process a subdivision application that met all code requirements. "Town’s Policy Requiring Notification to Civic Association as Part of Application Process Found Unconstitutional". The town apparently sat on the application for two years, then added a new prerequisite:

The court found that the Town of Brookhaven’s ("Brookhaven”) policy requiring applicants to the Town’s Department of Planning, Environment and Development (“Planning Department”) to contact and meet with local civic organizations and supply the civic organizations with proposed project plans as a pre-condition to the application process was not Constitutionally sustainable. “[T]o go before a Civic Association, a nongovernmental body, which does not keep records and makes no Findings cannot be constitutionally supported.”

EMM

That word means what I say it means, no more, no less

While many administrative law disputes turn on facts, many also turn on interpretation of statutes and regulations. Lawrence Friedman on his Customs Law blog presents an example of counterintuitive statutory interpretation in "Ship Repairs Are Merchandise". [I hate to disagree with his interpretation of the "exceedingly cool picture" to which he links, but the vessels being transported are landing craft for Logistics Over The Shore operations, not amphibious craft - hey, I'm a librarian, what do you expect?] From the post:

Section 1583 of Title 28 of the US Code gives the Court of International Trade jurisdiction over counterclaims asserted by the government that involve the "imported merchandise that is the subject" of the main case. CSC, the vessel owner, moved to dismiss the counterclaim arguing that vessel repairs are not imported "merchandise." This seems to be a rational argument based on a normal English understanding of the word merchandise. Unfortunately, the law often does not comport with the language. Looking to several dictionaries, the Court found that merchandise is something sold in commerce. At least one definition specifically included services. In addition, there are several places throughout the law and regulations that seem to include vessel repairs in the broader category of merchandise. There are also counter examples, including the Tariff Schedule, which uses the construction "Tariff Treatment of Imported Goods and of Vessel Equipments, Parts and Repairs." While this clearly distinguishes repairs from goods, it does not necessarily follow that both repairs and goods are not "merchandise" for tariff purposes. [That's my analysis, not the Court's.]

EMM

When is an embargo not an embargo?

For a little light but educational reading for those who have finished grading exams, see "Salmon Case Continues Upstream Battle" from Lawrence Friedman on his Customs Law blog. As you can infer from the title, this post includes an extended pun. To get back to work:

The question presented is whether the Endangered Species Act prohibition on the importation of these fish constitutes an embargo for purposes of engaging the Court's jurisdiction.  An embargo is a government-imposed cap of zero on the importation of some merchandise.  But, an embargo is not based on a private party's right to prohibit importation (e.g., where Customs seizes counterfeit trademarks to enforce a private right). Section 7(a)(2) of the Endangered Species Act does not create an embargo.  Rather, it creates an obligation for federal agencies to consult regarding enforcement of the Act.  The ESA consultation requirement is also unlike embargoes that are put in place to promote government policy considerations (think Cuba), morality (think lottery tickets), or safety (pick any dangerous thing you can't import).  No embargo, no jurisdiction in the CIT.

See the post for the funny stuff. EMM

"Parroting regulations" are not real regulations

Texas RioGrande Legal Aid has posted on JDSupra an Opinion & Order handed down today in Lupe et al. v. FEMA, No. B-08-487 (S.D. Texas). "A federal court has ruled that the Federal Emergency Management Agency (FEMA) must issue its standards and criteria to distribute federal aid to disaster victims. The decision means that thousands of families may be eligible to receive assistance they were previously denied." The Court denied FEMA's motion to dismiss for lack of jurisdiction (sovereign immunity), finding that under the enabling statute the requirement to issue true implementing regulations on its criteria for distributing disaster assistance and not the "parroting regulations" (regulations that just restate the statute) it had issued. Finding the plaintiffs had met the four elements required for a preliminary injunction, the Court issued it.

One of the interesting principles in administrative law is that when checking if the government followed its own rules (statutes, regulations, etc.), courts seem to prefer function over form. Calling something a regulation does not make it a regulation. EMM

Why does rulemaking take so long?

The answer, according to a new GAO study, is: We don't know. "Federal Rulemaking: Improvements Needed to Monitoring and Evaluation of Rules Development as Well as to the Transparency of OMB Regulatory Reviews". 

The agencies GAO reviewed had little data on the time and resources used to comply with regulatory requirements making it difficult to evaluate the effects of these requirements on rulemaking. ... The agencies GAO reviewed also could provide little systematic data on the resources they used—such as staff hours, contract costs, and other expenses—in developing rules. ...

Our review of 139 major rules including 16 case-study rules revealed that most triggered analytical requirements under the Paperwork Reduction Act (PRA), Regulatory Flexibility Act (RFA), and Executive Order 12866, but few other requirements. ... Based on the limited information available, the average time needed to complete a rulemaking across our 16 case-study rules was about 4 years, with a range from about 1 year to nearly 14 years, but there was considerable variation among agencies and rules.   

EMM

Confusion on judicial deference

New on SSRN: "Cooper Technologies Co. v. Dudas: Laying the Foundation for Minimal Deference" by David R. Pekarek Krohn (Northwestern). Abstract:

The Court of Appeals for the Federal Circuit's jurisprudence of whether Chevron deference is due to the United States Patent and Trademark Office (PTO) has been remarked upon as inconsistent and conflicting. The recent Federal Circuit case of Cooper Technologies Co. v. Dudas seems to reconcile precedent and create a bright-line rule: that Chevron deference is proper for interpretative rules dealing with the proceedings of the PTO, but not for substantive rules. While this opinion seems to address the previous inconsistencies within the Federal Circuit, it relies on some interpretations of administrative law doctrine that, at the least, reveal a continuing circuit split on some important issues, but which also may misinterpret some of the foundations on which the doctrine rests.

In Cooper, the Federal Circuit limited Chevron deference to the PTO in two different ways, both of which relate to the holding that the PTO has no substantive rulemaking power. First, rules that are due deference must be related to the proceedings of the PTO. Second, the rule must be interpretative. It did this even though: (a) the rule in Cooper was promulgated with the same procedures required for substantive rules; and (b) the PTO never asked for Chevron deference to be applied in the case. This holding seems to ignore that interpretative rules as a class are not entitled to Chevron deference. Many circuits, in fact, hold that interpretative rules are never entitled to Chevron deference. In addition, this holding creates a conjunctive test of the PTO's authority out of formerly disjunctive requirements.

This note argues that the goal of Cooper was to establish a seemingly clear rule that carves out very little authority for the PTO. And, in a move reminiscent of Marbury v. Madison, it found for the PTO in the specific case, but set up a binding framework that would cause the PTO to lose in future cases where deference under Chevron was sought.

EMM

Dealing with 'street-level' bureaucrats

New on SSRN: "Through the Eyes of Bureaucrats: How Front-Line Officials Understand Administrative Justice" by Marc Hertogh (University of Groningen - Faculty of Law), to be published in Administrative Justice in Context, M. Adler, ed., Oxford: Hart Publishing, 2009. Abstract:    

Over the years, empirical studies have suggested that street-level bureaucrats' own perceptions of law and justice play a significant role in administrative decision-making (Kagan 1978; Mashaw 1983; Maynard-Moody and Musheno 2003). These studies underscore the idea that street-level beliefs are essential to understanding the modern state. Yet, thus far this idea has not been developed further in most of the administrative justice literature. This paper attempts to fill this void and asks: How do front-line officials understand administrative justice? It aims to contribute to the development of a theoretical framework for analyzing administrative justice. More in particular, the paper seeks to study street-level beliefs by further developing the analytical concepts of 'legal consciousness' and 'legal alienation'. First, the paper will introduce two different conceptions of legal consciousness. While the first conception asks: 'How do public officials experience (legal principles of) administrative justice?' The second conception focuses on: 'What do public officials themselves experience as (important principles of) administrative justice?' Next, both conceptions will be applied in an exploratory case study which focuses on the work of front-line officials in the Netherlands. Based on this case study, the paper will then focus on the fact that front-line officials often appear to be alienated not only from their work and their clients, but also from the law. This section will ask: how can we understand the concept of 'legal alienation' and how may it be employed in a study of administrative decision-making? Next, the paper will discuss three ways in which a focus on street-level beliefs may contribute to the study of administrative justice. In the final section, it will be concluded that front-line officials not only play an important role in the formulation and implementation of public policy, but also in the realization of normative ideals of administrative justice.

While this chapter is focused on the Netherlands, the perspective applies everywhere. The most frequent interaction between our students and government is through the officials who deal first with the public - the building inspector, the revenue agent, the case evaluator, etc. Understanding "where they are coming from" in conflict or compliance is an important part of administrative law practice and a topic we should teach.

Another chapter from the same book: "A Cultural Analysis of Administrative Justice" by Simon Halliday (Law School, University of Strathclyde; Faculty of Law, University of New South Wales) and Colin Scott (School of Law, University College Dublin). Abstract:

In recent years we have seen rapid change in the organisation of public management. Various developments, sometimes captured in the notion of the 'new public management', have significantly altered the character of public administration. This presents quite a challenge for theorists of administrative justice. The values and processes which infuse new public management sit in some tension with traditional conceptions of administrative justice, particularly within legal theory. To what extent should the concept be extended to embrace these real-world developments? Further, is there more to be said about administrative justice than is not captured by existing theory, even including a focus on new public management? These questions form the background to this article in which we develop a typology of administrative justice - an analytical framework which captures the variations in how 'administrative justice' might be conceived.

Our analysis re-works the typologies of Mashaw, Adler and Kagan and places them in a wider framework developed from grid-group cultural theory. The analysis also draws attention to conceptions of administrative justice not previously discussed in the literature: decision-making by lottery, and decision-making by consensus.

EMM

New administrative law articles

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

• Abbott, Kenneth W. and Duncan Snidal. Strengthening international regulation through transnational new governance: overcoming the orchestration deficit. 42 Vand. J. Transnat'l L. 501-578 (2009). [L]|[W]
• Barker, Kevin Gauntt. Comment. Thank you for regulating: why Philip Morris's embrace of FDA regulation helps the company but harms the agency. 61 Admin. L. Rev. 197-224 (2009). [L]|[W]
• Benjamin, Stuart Minor and Arti K. Rai. Fixing innovation policy: a structural perspective. 77 Geo. Wash. L. Rev. 1-88 (2008). [L]|[W]
• Brito, Jerry and Veronique de Rugy. Midnight regulations and regulatory review. 61 Admin. L. Rev. 163-196 (2009). [L]|[W]
• D'Ardenne, Jessica. Note. A hybrid marine protection system as a model for the marine conservation efforts of the United States. 20 Colo. J. Int'l Envtl. L. & Pol'y 99-126 (2008). [L]|[W]
• Hartman, Amity. Student article. FDA's minimal regulation of cosmetics and the daring claims of cosmetic companies that cause consumers economic harm. 36 W. St. U. L. Rev. 53-87 (2008). [L]|[W]
• Improving the Administrative Process: A Report to the President-Elect of the United States (2008). 61 Admin. L. Rev. 235-247 (2009). [L]|[W]
• Michael, Douglas C. "Prejudgment" rejudgment: the true story of Antoniu v. SEC. 61 Admin. L. Rev. 225-233 (2009). [L]|[W]
• Varona, Anthony E. Toward a broadband public interest standard. 61 Admin. L. Rev. 1-135 (2009). [L]|[W]
• Waggoner, Michael. Why and how to tax carbon. 20 Colo. J. Int'l Envtl. L. & Pol'y 1-34 (2008). [L]|[W]
• Winship, Verity. Public agencies and investor compensation: examples from the SEC and CFTC. 61 Admin. L. Rev. 137-161 (2009). [L]|[W]
• Balancing Deregulation and Consumer Protection. Preface by Kevin J. Martin; articles by Barbara A. Cherry, Jeffrey A. Eisenbach, Paul S. Lowengrub, James C. Miller III, Thomas B. Nachbar, Lynne Holt and Mary Galligan. 17 CommLaw Conspectus 1-185 (2008). [L]|[W]
  • Martin, Kevin J. Preface. 17 CommLaw Conspectus i-xxiii (2008).
  • Cherry, Barbara A. Institutional governance for essential industries under complexity: providing resilience within the rule of law. 17 CommLaw Conspectus 1-31 (2008). [L]|[W]
  • Eisenbach, Jeffrey A., Paul S. Lowengrub and James C. Miller III. An event analysis study of the economic implications of the FCC's UNE decision: backdrop for current network sharing proposals. 17 CommLaw Conspectus 33-65 (2008). [L]|[W]
  • Nachbar, Thomas B. The public network. 17 CommLaw Conspectus 67-139 (2008). [L]|[W]
  • Holt, Lynne and Mary Galligan. State and federal policies to accelerate broadband deployment: a policy checklist. 17 CommLaw Conspectus 141- 185 (2008). [L]|[W]
  • Hoeker, Michael T. Comment. From Carterfone to the iPhone: consumer choices in the wireless telecommunications marketplace. 17 CommLaw Conspectus 187-229 (2008). [L]|[W]
  • Jameson, Sarah. Comment. Cyberharassment: striking a balance between free speech and privacy. 17 CommLaw Conspectus 231-266 (2008). [L]|[W]
  • Garcia, Kari. Comment. Broadcasting democracy: why America's political candidates need free airtime. 17 CommLaw Conspectus 267-307 (2008). [L]|[W]
  • Bankey, Robert M. Jr. Comment. Sound rights : legal protections from audio intrusions in light of directional sound technology. 17 CommLaw Conspectus 309-352 (2008). [L]|[W]
  • Major court decisions, 2008. 17 CommLaw Conspectus 353-360 (2008). [L]|[W]
  • Selected FCC docket summaries, 2008. 17 CommLaw Conspectus 361-369 (2008). [L]|[W]

EMM

Respect mah authoritay!

In a new Arizona Court of Appeals opinion, New Sun Business Park, LLC, v. Yuma County, No. 1 CA-CV 08-0094 (May 5, 2009), the plaintiff real estate developments tried to stop the County from enforcing multiple zoning violations by challenging the appointments of the County Zoning Inspector and his Deputy.

First, the Plaintiffs maintained that the Inspector was not properly appointed because the County ordinance under which he had been appointed had been repealed (apparently by accident). The County had not transferred his duties to anyone else when the ordinance was repealed, nor had it repealed the zoning regulations themselves. The Court of Appeals disagreed with the Plaintiffs, drawing an analogy to an Arizona state statute:

¶9  This conclusion is supported by A.R.S. § 1-251 (2002): “A person who at the time an act takes effect holds office under a law repealed by such act continues to hold the office according to the tenure of the law repealed, unless the duties of the office are expressly transferred to some other office.”  Even though county ordinances are not the equivalent of state statutes, we believe § 1-251 provides a guiding principle here.

As the Zoning Inspector had been properly appointed 12 years before the ordinance was repealed, he continued to hold the office with its full authority.

Second, the plaintiffs challenged the validity of the appointment of the Deputy Zoning Inspector who actually wrote up the violations because the relevant state statute required that both the Zoning Inspector and any Deputy Zoning Inspectors be appointed by the County Board of Supervisors. Here, the Deputy Inspector had been hired by the Inspector, not by the Board. After a detailed analysis of the statute, the Court of Appeals agreed with the plaintiffs.  However, that was not the end of the Court's analysis.

... In accordance with our interpretation of A.R.S. § 11-808(A), the hiring of Van Why did not comply with the § 11-808(A).  Nevertheless, the complaints issued by Van Why against Appellants are valid because Van Why was acting as a de facto deputy zoning inspector.

¶20  Our territorial supreme court in Jeffords v. Hine, 2 Ariz. 162, 168-69, 11 P. 351, 355 (1886), explained the rationale behind the de facto doctrine, which has arisen to ensure that the process of government continues even when an official must be removed for failure to meet certain statutory eligibility requirements:

Whatever may be said of the acts of a mere intruder, without any claim or color of title, it is well settled that a person actually obtaining an office, with the legal indicia of title, is a legal officer, until ousted, so far as his official acts are concerned, they are as valid as if his title were not disputed.  The public have an interest in the continuous and unbroken discharge of official duty, and the necessities thereof, and cannot wait to try the title of conflicting claimants to an office.  For this reason it has come to be held, so often as to be now settled, that the official acts of the incumbent of an office, with whom alone the public can, under the circumstances, transact business, shall be regarded as legal.  The affairs of society could not be carried on in any other way than by treating as valid the official acts of [a] person de facto in office.

[¶22]... And there is no suggestion by Appellants that, at the time Stansbury appointed Van Why as deputy zoning inspector, any person was aware that the appointment did not comply with the requirements of A.R.S. § 11-808(A).

¶23  On this record, therefore, we hold that Van Why was acting as a  de facto deputy county zoning inspector for the County when he issued the complaints against Appellants and, thus, the complaints are not void for the failure of the Board to appoint Van Why under A.R.S. § 11-808(A) as a deputy inspector.

(I confess that I enjoy seeing old cases cited in modern opinions, and in Arizona anything from before statehood is old.) So, as Cartman says in South Park: "Respect mah authoritay!" EMM