Administrative Law Prof Blog

Theory: Motivations for regulatory overcompliance

From the Review of Law & Economics: "Firms’ Motivations for Environmental Overcompliance" by JunJie Wu (Oregon State) and Teresa M. Wirkkala (ENTRIX, Inc.) Abstract:

This article examines firms’ motivations for environmental overcompliance. A theoretical model is developed to identify the internal and external factors that influence firms’ decisions for environmental overcompliance. An empirical analysis is then conducted to determine the statistical significance of those factors using the primary data collected in an industrial survey in Oregon. The results suggest that diverse factors influence business decisions for environmental overcompliance, including market forces, regulatory pressures, and personal values and beliefs of upper management toward environmental stewardship.

It would be interesting to see if this article's findings apply in other regulatory arenas. EMM

New administrative law articles

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

• Aftergood, Steven. Reducing government secrecy: finding what works. 27 Yale L. & Pol"y Rev. 399-416 (2009). [H]|[L]|[W]
• Bumgardner, Heath D. Comment. A bureaucratic challenge to representation: security clearance requirements and the right to counsel. 19 Geo. Mason U. Civ. Rts. L.J. 625-661 (2009). [H]|[L]|[W]
• Fleder, Samuel David. Comment. Circumvention by delegation? An analysis of North Carolina"s Open Meetings Law and the Byrd loophole. 31 Campbell L. Rev. 535-556 (2009). [H]|[L]|[W]
• Halpert, Mordachi and Boaz Sangero. From a plane crash to the conviction of an innocent person: why forensic science evidence should be inadmissible unless it has been developed as a safety-critical system. 32 Hamline L. Rev. 65-94 (2009). [H]|[L]|[W]
• Pawlenko, Kye. The non-viability of state regulation of workplace captive audience meetings: a response to Professor Secunda. 32 Hamline L. Rev. 191-206 (2009). [H]|[L]|[W]
• Sharkey, Erica. Note. Eureka Stone Quarry, Inc. v. Department of Environmental Protection: the rocky results of air quality violations. 20 Vill. Envtl. L.J. 337-359 (2009). [H]|[L]|[W]

EMM

Why no new stuff?

I'm at the annual meeting of the American Association of Law Libraries in DC. I will be back in my office (and on the reference desk) on Thursday, July 28. EMM

Legislative or administrative decision? And why?

An Idaho case from Patty Salkin's (Albany) Law of the Land blog, "County’s Decision on Whether to Amend Comprehensive Plan Not Reviewable by Court":

The Supreme Court of Idaho held that because there is no statute authorizing judicial review of the legislative decision whether or not to amend a comprehensive plan, the courts may not review the Board’s actions. The Court noted that a county board of commissioners is not an “agency” under the Idaho Administrative Procedures Act (IAPA), and that therefore its actions are not reviewable absent a statute invoking judicial review provisions of the IAPA. The Court said that a request to amend zoning is not an “application for a permit” which would have provided for judicial review, noting that “An application for a zoning change, like a request for an amendment to a comprehensive plan, is not an application for a ‘permit’ and thus no review is authorized…” Lastly, the Court commented that although this legislative decision is not subject to judicial review, it could be subject to scrutiny by means of collateral actions such as declaratory actions.

The definitions of "legislative decisions" and "administrative decisions vary from jurisdiction to jurisdiction. YMMV. EMM

The Recurring Question of Chevron Deference & Agency Jurisdiction

From Jonathan Adler at The Volokh Conspiracy, "The Recurring Question of Chevron Deference & Agency Jurisdiction". Opening paragraph:

Unless you’re an avid follower of federal energy law, there’s no reason you would have noticed the U.S. Court of Appeals for District of Columbia’s recent decision in Connecticut Department of Public Utility Control v. Federal Energy Regulatory Commission. In this case, a panel held that the Federal Energy Regulatory Commission (FERC) has jurisdiction to review the installed capacity requirement set by a regional transmission organization that administers regional electricity transmission. Those not focused on energy regulation (myself included) might be tempted to ask, “Who cares?” But not so fast. CDPUC v. FERC raised an interesting an important administrative law question that has bedeviled and divided federal appellate courts for years: Whether courts should grant Chevron deference to agency statutory interpretations that implicate the an agency’s regulatory jurisdiction.

Nemo debet esse iudex in propria causa (no one should be judge in his own cause). As Lord Coke said, "even an act of Parliament made against natural equity, as to make a man a judge in his own case, is void in itself". Co. Lit. §212. Yes, I know that the British courts no longer follow this maxim as to acts of Parliament, but it remains applicable otherwise. Prof. Adler points out,

Yet in some prior cases, the D.C. Circuit has expressly declined to defer to agency interpretations of statutory provisions defining the scope of an agency’s jurisdiction. As the court explained in its 1987 decision in ACLU v. FCC:

it seems highly unlikely that a responsible Congress would implicitly delegate to an agency the power to define the scope of its own power. When an agency's assertion of power into new areas is under attack, therefore, courts should perform a close and searching analysis of congressional intent, remaining skeptical of the proposition that Congress did not speak to such a fundamental issue.

My own view is that the D.C. Circuit had it right in 1987 is wrong today.

See "The Rest is Silence: 'Chevron' Deference, Agency Jurisdiction, and Statutory Silences" by Nathan Sales and Jonathan Adler on SSRN. Abstract:

Should agencies receive Chevron deference when interpreting the reach of their own jurisdiction? This article argues that, in general, they should not. We begin by identifying and detailing the various different types of jurisdictional questions that may arise in statutory interpretation. The article then surveys how the Supreme Court and lower federal courts have analyzed these different aspects of the jurisdiction problem, with a particular attention to statutory silences. The Court's Chevron jurisprudence strongly suggest that deference to agency determinations of their own jurisdiction should be disfavored, particularly where a statute is silent (and not merely ambiguous) about the existence of agency jurisdiction. In particular, we argue that courts should deny Chevron deference regardless of whether an agency is asserting or disclaiming jurisdiction. This no-deference rule should apply in both existence- and scope-of-power cases, but courts should continue to show deference where agencies assert the existence of a factual predicate that triggers jurisdiction. We support our proposal with arguments drawing on both traditional administrative law norms and public choice analyses of the incentives faced by agencies and other relevant actors. While there are strong counterarguments to our proposal - particularly the potential difficulty in distinguishing between jurisdictional and non-jurisdictional questions - this article maintains that denying deference in the jurisdictional context is desirable and consistent with Chevron principles.

Recommended. EMM

An interesting APA case

On the Statutory Construction Blog, David Hricik (Mercer) point out an interesting Federal Circuit opinion in "Holy Trinity Wise but Would be Ignored Today?". The case is Nat'l Cable Telecomm. Ass'n v. FCC, No. 08-1016 (Fed. Cir. May 26, 2009). Dave is quite right that the statutory interpretation arguments would be difficult to summarize, and I commend them to you.

The dispute is over new FCC regulations prohibiting exclusive cable deals in multifamily housing. These regulations are a reversal of the 2003 Inside Wiring Order. From an administrative law perspective, the Court deals with three objections. I'm going to omit all of the cites and internal quotes. First, beginning on page 13:

For their primary APA claim, petitioners argue that in deciding "to bar [exclusivity contracts] now, after affirmatively permitting them in 2003," the Commission failed to explain its change of heart and thus acted arbitrarily and capriciously. Of course, it is axiomatic that agency action must either be consistent with prior action or offer a reasoned basis for its departure from precedent. Yet it is equally axiomatic that an agency is free to change its mind so long as it supplies a reasoned analysis, showing that prior policies and standards are being deliberately changed, not casually ignored. Petitioners believe that the Commission has neither reasonably disavowed the logic of the 2003 Inside Wiring Order nor explained how that logic could fail to produce the same outcome on the record now presented. Finding the Commission's extensive discussion of its change in approach more than equal to our forgiving standard of review, we disagree. ...

Indeed, even were the analysis in the 2003 Inside Wiring Order more extensive, and even had it expressly committed the Commission to petitioners' preferred logic, the 2007 Order's analysis would still easily satisfy our deferential standard of review. As the Supreme Court recently put it, "[the Commission] need not demonstrate to a court's satisfaction that the reasons for the new policy are better than the reasons for the old one; it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better." In other words, the existence of contrary agency precedent gives us no more power than usual to question the Commission's substantive determinations. We still ask only whether the Commission has adequately explained the reasons for its current action and whether those reasons themselves reflect a clear error of judgment. Here, the Commission could hardly have made its "good reasons" for its current policy clearer: it believes that individual consumers are more likely to capture the benefits of competition in the absence of exclusivity agreements. ... Given this explanation, together with the rest of the Commission's extensive analysis of exclusivity contracts, we can easily see a clear articulation of the concerns driving its change in policy, as well as the basis for the new, reasonable inferences the Commission drew from a significantly updated record. This marks the limits of our review.

The second argument is on page 19:

Mounting a separate complaint, real estate petitioners argue that the Commission acted arbitrarily by rejecting their proposed alternative remedies, including case-by-case adjudication. This argument runs aground on bedrock administrative law, which puts the choice between proceeding by general rule or by individual, ad hoc litigation primarily in the informed discretion of the administrative agency. ... [W]e see considerable wisdom in the Commission's determination to avoid the burden that would be imposed by numerous individual adjudications, a judgment petitioners have given us no reason to doubt.

The third administrative law issue begins on page 19:

The final issue presented concerns the Commission's decision to apply its rule to existing contracts. According to petitioners, this amounts to directly retroactive action barred by the APA's requirement that legislative rules be given future effect only ...

First, we think it readily apparent that the Commission's action has only future effect as the APA and our precedents use that term. The exclusivity ban purports to alter only the present situation, not the past legal consequences of past actions. Petitioners insist that under our precedent, [t]he critical question is only whether the Commission's rule "changes the legal landscape". Of course, if that were all it took to render a rule impermissible under the APA, it would spell the end of informal rulemaking. We have thus repeatedly made clear that an agency order that only upsets expectations based on prior law is not retroactive. That describes precisely this case. Here the Commission has impaired the future value of past bargains but has not rendered past actions illegal or otherwise sanctionable. It is often the case that a business will undertake a certain course of conduct based on the current law, and will then find its expectations frustrated when the law changes. Such expectations, however legitimate, cannot furnish a sufficient basis for identifying impermissibly retroactive rules. ...

Legitimate expectations, it noted, were left largely undisturbed, because [t]he lawfulness of exclusivity clauses ha[d] been under [the Commission's] active scrutiny for a decade, and both the Commission and several individual states had already taken similar actions. Finally, the Commission explained that incumbent operators would continue to reap the benefits of their natural monopolies, as they will still be able to use their equipment in MDUs to provide service to residents who wish to continue to subscribe to their services.

Once again, we think [the Commission's] extensive discussion easily satisfies the Commission's obligation under our deferential standard of review [i.e., Chevron — Editor]. The Commission balanced benefits against harms and expressly determined that applying the rule to existing contracts was worth its costs. Indeed, it devoted as much analysis to this narrow issue as it did to the entire question of exclusivity contracts in the 2003 Inside Wiring Order on which petitioners claim they reasonably relied. Thus, although petitioners believe that the 2003 order promised them that their exclusivity deals would remain valid, we agree with the Commission that any cautious administrative lawyer would have understood that the Commission could later take precisely the action it decided against in 2003. That agencies may change their minds is, after all, a matter of hornbook law — all the more so where, as here, the initial decision not to act was based on the insufficiency of the record. We thus see nothing unreasonable in the Commission's balancing of the benefits and costs and, following familiar principles of judicial review, we decline to rebalance those factors for ourselves.

EMM

Standing - particularized injury

From Patty Salkin's (Albany) Law of the Land blog, "Town Residents Who Were Not Adjacent Property Owners Lacked Standing to Challenge Public Boat Launching Site":

Following a request by the Board of Selectmen to improve the Westport Island’s only public boat-launching site, the planning board approved the project. The proposal ... was expected to increase daily trips to and from the site by 36 vehicles during peak season. ... [O]pponents asked the planning board to grant them party status because the frequently travel on the road where the boat launch is located and they were concerned about safety issues with increased traffic. ... Although the residents alleged they were aggrieved because their personal property was threatened due to the increased risk of traffic accidents at the frequently traveled intersection, the board rejected this argument finding that they failed to prove any “potential injury different from that suffered by the general public traveling over [the] Route.”

The Supreme Court of Maine noted that just because ... they live on the Island and frequently travel by the site, and because they attended the planning board hearings, does not demonstrate that the residents are “aggrieved parties” for purposes of appeal to the zoning board within the meaning of the zoning ordinance. The Court said that in addition to demonstrating party status during the administrative proceeding, to be an “aggrieved party” they must also demonstrate that they suffered a particularized injury or harm. Relying only on their status as members of the driving public, is not enough to grant standing since they have no property affected directly or indirectly by the boat ramp permit and no other economic interest that could give them standing. The Court also noted that their alleged harm was not particularized given the fact that 1,600 people drive by the site daily.

EMM

New administrative law articles

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

• Botein, Michael. Federal regulation of FIOS and Lightspeed: a tale of two jurisdictional dilemmas. 53 N.Y.L. Sch. L. Rev. 1041-1055 (2008/09). [H]|[L]|[W]
• Crawford, Susan P. Transporting communications. 89 B.U. L. Rev. 871-937 (2009). [H]|[L]|[W]
• Krishtul, Anna Pikovsky. Comment. The FDA's recent about-face: Plan B age restriction is unlawful rulemaking and violates minors' due process rights. 81 Temp. L. Rev. 303-330 (2008). [H]|[L]|[W]
• Madara, Matthew R. Note. Constitutional law--sacrificing the good of the few for the good of the many: denying the terminally ill access to experimental medication. 31 W. New Eng. L. Rev. 535-580 (2009). [H]|[L]|[W]
• Silvers, Damon and Heather Slavkin. The legacy of deregulation and the financial crisis--linkages between deregulation in labor markets, housing finance markets, and the broader financial markets. 4 J. Bus. & Tech. L. 301-347 (2009). [H]|[L]|[W]
• Zaring, David. Personal liability as administrative law. 66 Wash. & Lee L. Rev. 313-367 (2009). [H]|[L]|[W]
• Proposed Regulatory Systems. Articles by Gerald Korngold, John Patrick Hunt and Thomas E. Plank. 60 S.C. L. Rev. 727-805 (2009). [H]|[L]|[W]
  • Korngold, Gerald. Legal and policy choices in the aftermath of the subprime and mortgage financing crisis. 60 S.C. L. Rev. 727-748 (2009). [H]|[L]|[W]
  • Hunt, John Patrick. One cheer for credit rating agencies: how the market-to-market accounting debate highlights the case for rating- dependent capital regulation. 60 S.C. L. Rev. 749-778 (2009). [H]|[L]|[W]
  • Plank, Thomas E. Regulation and reform of the mortgage market and the nature of mortgage loans: lessons from Fannie Mae and Freddie Mac. 60 S.C. L. Rev. 779-805 (2009). [H]|[L]|[W]
• Sustainable Energy: The Intersection of Innovation, Law, and Policy. Keynote address by John Hanger; articles by Gary E. Marchant, Amy L. Edwards, David M. Driesen and Robert A. Reiley. 18 Widener L.J. 817-935 (2009). [H]|[L]|[W]
  • Hanger, John. Keynote address at the Widener Law Journal Symposium. 18 Widener L.J. 817-829 (2009). [H]|[L]|[W]
  • Marchant, Gary E. Sustainable energy technologies: ten lessons from the history of technology regulation. 18 Widener L.J. 831-858 (2009). [H]|[L]|[W]
  • Edwards, Amy L. When brown meets green: integrating sustainable development principles into brownfield redevelopment projects. 18 Widener L.J. 859-881 (2009). [H]|[L]|[W]
  • Driesen, David M. Sustainable development and air quality: the need to replace basic technologies with cleaner alternatives. 18 Widener L.J. 883-895 (2009). [H]|[L]|[W]
  • Reiley, Robert A. Financial incentives and the leadership role taken by Pennsylvania and other states to bring green energy to the free market. 18 Widener L.J. 897-935 (2009). [H]|[L]|[W]
• Symposium on Health Care Technology: Regulation and Reimbursement. Foreword by Maxwell J. Mehlman; articles by Michael Ash and Stephen Arons, Timothy S. Hall, Karen A. Jordan and Richard S. Saver. 31 W. New Eng. L. Rev. 293-451 (2009). [H]|[L]|[W]
  • Mehlman, Maxwell J. Foreword. 31 W. New Eng. L. Rev. 293-303 (2009). [H]|[L]|[W]
  • Ash, Michael and Stephen Arons. Economic parameters of end-of-life care: some policy implications in an era of health care reform. 31 W. New Eng. L. Rev. 305-332 (2009). [H]|[L]|[W]
  • Hall, Timothy S. Regulating direct-to-consumer advertising with tort law: is the law finally catching up with the market? 31 W. New Eng. L. Rev. 333-352 (2009). [H]|[L]|[W]
  • Jordan, Karen A. Opening the door to hard-look review of agency presumption. 31 W. New Eng. L. Rev. 353-410 (2009). [H]|[L]|[W]
  • Saver, Richard S. At the end of clinical trial: does access to investigational technology end as well? 31 W. New Eng. L. Rev. 411-451 (2009). [H]|[L]|[W]

EMM

SSRN Administrative Law Abstracts for July 20, 2009

Tomorrow's Research Today ADMINISTRATIVE LAW ABSTRACTS Accepted Paper Series Vol. 13, No. 14: Jul 20, 2009 WILLIAM FUNK, EDITOR Professor of Law, Lewis & Clark Law School funk@lclark.edu Click here to browse ALL abstracts for this journal   Links: Subscribe ~ Unsubscribe | Distribution | Network Directors | Advisory Board | Submit ~ Revise Your Papers   Table of Contents Are 'Better' Security Breach Notification Laws Possible? Jane K. Winn, University of Washington - School of Law Standing for the Public: A Lost History M. Elizabeth Magill, University of Virginia School of Law The President as Scientist-in-Chief Michele E. Gilman, University of Baltimore - School of Law Jurisdiction as Competition Promotion: A Unified Theory of the FCC's Ancillary Jurisdiction John F. Blevins, South Texas College of Law Accountability in the Administrative Law Judiciary: The Right and the Wrong Kind Edwin Felter, affiliation not provided to SSRN The Australian Crowns - Changing the Rules of Succession Anne Twomey, University of Sydney - Faculty of Law Is a Competent Federal Government Attainable or Oxymoronic? Peter H. Schuck, Yale University - Law School ^top ADMINISTRATIVE LAW ABSTRACTS "Are 'Better' Security Breach Notification Laws Possible?"  Berkley Technology Law Journal, 2009 JANE K. WINN, University of Washington - School of Law Email: jkwinn1@u.washington.edu Security breach notification laws (SBNLs) have clearly succeeded in bringing the issue of inadequate information security to the attention of American consumers, but it is not clear whether have succeeded in creating stronger incentives for American businesses to invest in better security for databases of sensitive personal information. This paper reviews the development of new governance approaches to regulation, including “responsive regulation,” “smart regulation” and “better regulation” and then applies new governance criteria to SBNLs to show why they are unlikely to have much impact on the information security policies of many American businesses. This paper reviews the practical problems that any business faces when trying to secure large quantities of sensitive personal information, and outlines what a “better regulation” approach to information security regulation targeting sensitive personal information might include. "Standing for the Public: A Lost History"  Virginia Law Review, 2009 M. ELIZABETH MAGILL, University of Virginia School of Law Email: mem2a@virginia.edu This article recaptures a now-anachronistic approach to standing law that the Supreme Court followed in the middle decades of the 20th Century and explains how and when it died. It then speculates about why the federal courts retreated from the doctrine when they did. The now-anachronistic view of the permissible scope of standing, which is called here 'standing for the public,' permitted Congress to authorize parties who had no cognizable legal rights to challenge government action, in order to, as the Supreme Court itself said 'represent the public' and bring the government’s legal errors before the courts. Ironically, the federal courts retreated from this approach to standing law in the 1960s and 1970s, the very period that is best known for its doctrinal innovations that liberalized standing law. The article tells the (complicated) tale of how the courts erased the standing for the public principle from the case law, places those actions action in context by looking at contemporaneous developments in the legal profession and Congress, and speculates about why this approach to standing law died when it did. "The President as Scientist-in-Chief"  Willamette Law Review, Vol. 45, No. 3, 2009 MICHELE E. GILMAN, University of Baltimore - School of Law Email: mgilman@ubalt.edu During the Bush Administration, many scientists, both inside and outside of government, asserted that the President was distorting scientific knowledge to achieve political ends. In controlling the scientific output of government agencies, President Bush acted consistently with unitary executive theory. Under this theory, the President can direct the output and discretion of government agencies. This article examines the tension between a unitary executive and government agencies engaged in scientific research and policy making. In particular, the article assesses the legality of two high profile instances in which President Bush allegedly distorted scientific data to achieve his policy objectives: global climate change and human embryonic stem cell research. The article assesses whether a Scientist-in-Chief model of executive control fosters the values of accountability and efficiency that underpin unitary executive theory. The article also explores various checks on the Scientist-in-Chief, including Congress, the courts, the states, and the media. The article concludes that a Scientist-in-Chief model of executive authority undermines democratic accountability and scientific deliberation. Notably, President Obama has expressly disavowed the Scientist-in-Chief model of his predecessor. "Jurisdiction as Competition Promotion: A Unified Theory of the FCC's Ancillary Jurisdiction"  Florida State University Law Review, Vol. 36, 2009 JOHN F. BLEVINS, South Texas College of Law Email: jblevins@stcl.edu The FCC’s “ancillary jurisdiction” refers to the agency’s residual authority to regulate matters over which it lacks explicit statutory authority under the Communications Act of 1934. Because many of today’s most controversial and consequential policy debates involve new technologies not explicitly covered by that statute, the scope of the FCC’s ancillary jurisdiction has taken on a critical new importance in recent years. In particular, the future of federal Internet policy depends on resolving the questions surrounding ancillary jurisdiction. In this article, I provide a new theory of the FCC’s ancillary jurisdiction, arguing that it is best understood as an authority to promote market competition. More specifically, ancillary jurisdiction has primarily addressed and promoted competition in markets where vertical leveraging is a concern – particularly those involving dominant incumbent infrastructure providers. My argument has both a positive and normative dimension. Descriptively, I offer the novel argument that the competition-promotion framework provides the most persuasive and coherent account of the seemingly incoherent line of cases reviewing the FCC’s ancillary jurisdiction. Normatively, I argue that the FCC’s ancillary jurisdiction should be exercised in this manner, in large part to protect the doctrine’s viability in the face of increasing criticism and to shape it in a way that both promotes competition and limits agency capture. "Accountability in the Administrative Law Judiciary: The Right and the Wrong Kind"  Denver University Law Review, Vol. 86, No. 1, 2008 EDWIN FELTER, affiliation not provided to SSRN Email: ed.felter@state.co.us This article discusses and evaluates several forms of accountability in the administrative law judiciary, and compares them with prevalent forms of accountability in the judicial branch. Felter argues that codes of judicial conduct, as well as formal enforcement mechanisms, work together to maintain a balance of independence and accountability in the administrative law judiciary. The article analyzes the "right kinds" of accountability as distinguished from the "wrong kind" of accountability, i.e., political accountability. The article maintains that decisional independence is the cornerstone of any properly functioning adjudication system. The price of decisional independence is accountability to concepts and mechanisms other than the political system. The article maintains that the first mechanism of accountability for all judicial and quasi-judicial officers is the requirement of "reasoned elaboration," which is the prerequisite to second form of accountability, judicial review. The next mechanism is accountability to the relevant code of judicial conduct. The article discusses and analyzes appropriate and inappropriate judicial performance evaluations. It distinguishes developmental evaluations (for the purpose of performance improvement, but not to affect pay or employment status) from judgmental evaluations. Developmental evaluations are sometimes in the form of anonymous surveys of practitioners and litigants, peer review quality assurance processes and/or both. Judgmental evaluations, which often are legally required and can affect pay and employment status, can be evaluations by a supervisory judge or by a performance commission. The article concludes with an argument against political evaluations of judges because these evaluations are generally based on the wrong reasons, e.g., the political clamor of the day. "The Australian Crowns - Changing the Rules of Succession"  Quadrant, Vol. 53, No. 6, pp. 44-47, 2009 Sydney Law School Research Paper No. 09/49 ANNE TWOMEY, University of Sydney - Faculty of Law Email: a.twomey@usyd.edu.au The United Kingdom Government proposes to consult other Commonwealth nations about removing some of the discriminatory aspects of the rules concerning succession to the throne. This article considers the potential effect upon the Crown in Australia of British legislation changing the rules of succession to the throne. It addresses the question of who has the power to change the rules of succession with respect to the Crown in Australia and proposes a solution based on federal principles. "Is a Competent Federal Government Attainable or Oxymoronic?"  George Washington Law Review, Vol. 77, 2009 PETER H. SCHUCK, Yale University - Law School Email: peter.schuck@yale.edu This is a review of two books on public policymaking performance and civil service reform at the federal level: A GOVERNMENT ILL EXECUTED: THE DECLINE OF THE FEDERAL SERVICE AND HOW TO REVERSE IT by Paul C. Light (Harvard U. Press 2008) and PROMOTING THE GENERAL WELFARE: NEW PERSPECTIVES ON GOVERNMENT PERFORMANCE, edited by Alan S. Gerber & Eric M. Patashnik (Brookings Institution Press, 2006). ^top Solicitation of Abstracts Administrative Law publishes abstracts of working papers as well as articles accepted for publication in the field of administrative law and regulation. To submit your research to SSRN, log in to the SSRN User HeadQuarters, and click on the My Papers link on the left menu, and then click on Start New Submission at the top of the page. Distribution Services If your Institution is interested in learning more about increasing readership for its research by becoming a Partner in Publishing or starting a Research Paper Series, please email: Management@SSRN.com. Distributed by: Legal Scholarship Network (LSN), a division of Social Science Electronic Publishing (SSEP) and Social Science Research Network (SSRN) Directors LSN SUBJECT MATTER EJOURNALS A. MITCHELL POLINSKY Stanford Law School, National Bureau of Economic Research (NBER) Email: polinsky@stanford.edu BERNARD S. BLACK University of Texas at Austin - School of Law, McCombs School of Business, University of Texas at Austin, European Corporate Governance Institute (ECGI) Email: bblack@law.utexas.edu RONALD J. GILSON Stanford Law School, Columbia Law School Email: rgilson@leland.stanford.edu Please contact us at the above addresses with your comments, questions or suggestions for LSN-Sub. Advisory Board Administrative Law WILLIAM R. ANDERSEN University of Washington School of Law MICHAEL ASIMOW University of California, Los Angeles - School of Law HAROLD H. BRUFF University of Colorado Law School RONALD A. CASS Chairman, Center for the Rule of Law; Dean Emeritus, Boston University School of Law RONALD M. LEVIN Washington University School of Law RICHARD J. PIERCE George Washington University Law School SUSAN ROSE-ACKERMAN Henry R. Luce Professor of Jurisprudence, Law School and Department of Political Science, Yale Law School EDWARD L. RUBIN Dean, Vanderbilt University - School of Law PETER H. SCHUCK Yale University - Law School SIDNEY A. SHAPIRO University Distinguished Professor of Law, Wake Forest University School of Law CASS R. 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Theory: Challenging arbitrary official treatment

New on SSRN: "State-Created Property and Due Process of Law: Filling the Void Left by Engquist V. Oregon Department of Agriculture", by Michael Lewis Wells (Georgia) and Alice Snedeker (Georgia J.D. '10). Abstract:    

Several years ago, in Village of Willowbrook v. Olech, the Supreme Court recognized a 'class-of-one' Equal Protection theory, under which individuals charging that they were singled out for arbitrary treatment by officials may sue for vindication. Last term, in Engquist v. Oregon Department of Agriculture, the Court barred recourse to this type of claim on the part of government employees. The reasoning of Engquist, which emphasizes the discretionary nature of employment decisions, threatens to eliminate a wide range of class-of-one claims outside the employment area as well. There is a pressing need for an alternative. This article proposes another basis on which some (but not all) litigants claiming arbitrary treatment by officials may seek relief. Persons whose relations with the state — whether as employee, holder of a business license, land developer, or otherwise — give rise to 'state-created' property interests may sue under the Due Process Clause when officials deprive them of those interests without due process of law. The right to procedural safeguards for such interests is well-established. We argue that they are entitled also to substantive protection. Yet, the case law on substantive due process for state-created property is sketchy, fragmented, and contradictory, in part, because the Supreme Court has provided little guidance. We develop an argument for substantive due process rights in this context, identify and meet objections to our thesis, and show how the right would operate in practice. Finally, we consider the impact of Engquist, an Equal Protection case, on our Due Process theory of recovery.

EMM

Quo warranto question to IRS from Congress

In a report by Martin Vaughan from Dow Jones, "Sen Grassley Says IRS Defied Congress On Tax Credit", the Senator asserts that the IRS has exceeded its authority

in implementing a tax credit in economic stimulus legislation for home energy efficiency upgrades.

The provision allowed homeowners to claim a tax credit of up to $1,500 for replacing property including windows, doors, skylights and insulation. It replaced a tax credit that was worth up to $500 for such upgrades.

But the stimulus provision also included tougher energy efficiency requirements for windows, doors and skylights to qualify for the new credit.

Sen. Charles Grassley, R-Iowa, charges that the IRS contradicted Congress by allowing the tax credit to apply to property that met the older, less stringent standard, if purchased before June 1.

This is a political rather than a legal question - nobody can sue over getting a bigger tax credit - but the question remains interesting: How much authority does the Service have to adjust implementation dates for statutory requirements?

The IRS says it did not go outside its legal authority. "Under Code section 7805(a) and (b) the secretary of the Treasury has broad authority to provide rules to interpret and administer the tax law, and that is what IRS did in this specific situation," said IRS spokeswoman Michelle Eldridge.

What do you think? Do other agencies (federal or otherwise) have this kind of flexibility? EMM

My colleague, Professor Lance McMillian (Atlanta's John Marshall Law School), has posted "The Death of Law:  A Cinematic Vision" on SSRN.  Here is the abstract:

Three recent films – Children of Men, V for Vendetta, and Minority Report – sound a warning call by painting stark and contrasting visions of life in the United States and Great Britain in the 21st century. Central to all three stories is the role of law as enforced by the state. Law’s importance to the narrative of film is nothing new. Because it has the power to both liberate and oppress, law presents a ready well of dramatic potential from which to draw inspiration. The movies studied here mine this potential well. The common fear that animates each of these works of art centers on the use of law as a tool of oppression. By projecting this future, the filmmakers hope to teach us something about ourselves in the present. Do they succeed?

This Article attempts to answer this question by examining the vision of law presented in the three films. The collective conclusions of the movies strike a pessimistic chord: in the future, the law will be dead. I offer critiques and counter-critiques of this prevailing vision. But no matter the reliability of film’s predictions about what lies ahead, the existence of the films is important in its own right. Criticism need not be accurate to be powerful. Even if darkness is not on the horizon, free societies would do well to periodically remind themselves of what darkness looks like.

The films that serve as Professor McMillian's focus all feature violations of basic democratic norms by self-interested leaders.  Administrative power -- with its distance from the political process -- would seem to be fertile soil for such leaders to exercise and expand their authority.          

KP

For the history buffs among our readers

New on SSRN: "Administrative Statutory Interpretation in the Antebellum Republic" by Jerry Louis Mashaw (Yale) and Avi Perry (Yale J.D. '08?). Abstract:    

There are many reasons to doubt whether administrative interpretation was an important part of lawmaking in the early American republic. The conventional wisdom of contemporary lawyers seems to be that until the Chevron case, statutory interpretation was primarily the role of courts. The modest attention to agency statutory interpretation prior to Chevron, combined with the avalanche of post-Chevron scholarly commentary, suggests that from the founding until 1984 the law followed the pattern of Chief Justice Marshall’s pronouncement in Marbury v. Madison, that saying “what the law is” was the province of the federal courts. Post-Chevron, of course, scholars have discovered not only that administrators interpret statutes, but have even argued that administrative interpretation has displaced adjudication in courts as the primary means by which federal common law is developed.

Historians and scholars of American political development have focused our attention in a similar direction. Professor Theodore J. Lowi famously declared that “[t]he first century was one of government dominated by Congress and virtually self-executing laws.” Equally famously, Stephen Skowronek labeled the pre-1877 national government a state of “courts and parties.” If statues were specific and self-executing, as Lowi claims, administrative interpretation could hardly be of much importance. Self-executing statutes contain their own behavioral requirements and presumably, enforcement is through prosecution in the courts. Similarly, a government that is composed primarily of courts and parties is necessarily a government in which administrators play minor roles. Therefore, the interpretations of these bit players in the legal system are hardly worthy of sustained attention.

But nineteenth century congressional government followed by the twentieth century emergence of an administrative state is not the whole story. In short, well before the Civil War, national administration in the United States was substantial, and statutes were never self-interpreting. Moreover, statutory interpretation was largely an administrative function at the national level because administrative action was virtually free from appellate-style judicial review. This was not a system in which administrators had Chevron or some other form of deference. It was a system in which administrators had absolute and final authority to interpret the law.

In this Article, we explore two aspects of administrative interpretation in the antebellum republic. We first look at the structures and processes of administrative interpretation. Modern lawyers know where to look for agency interpretations. The Federal Register bristles with agency interpretive material, and formal opinions in agency adjudications are compiled and reported in much the same fashion as judicial opinions. Every agency is required by the Federal Register Act to publish a description of its internal organization and the processes by which it conducts business. Outsiders seeking an interpretation are generally informed about how to petition for a ruling of some sort, what types of interpretive statements an agency issues, and where the final authority to make binding pronouncements lies.

The structures and processes for agency interpretation were informal and eclectic in the nineteenth century, and certainly in the antebellum period. The internal processes of departments were opaque and no single source compiled or reported administrative decisions. There was no widely available process for unifying interpretation where administrative and judicial approaches diverged. Within departments there was a constant struggle between center and periphery for interpretive authority. The role of the Attorney General in unifying administrative interpretation across departmental jurisdictions was quite uncertain, and then, as now, the position of the President as “Interpreter-in-Chief” was contested.

Part I will address these structural and procedural issues. In Part II, we turn to the question of interpretive methodology. Evidence here is sketchy and conclusions must be quite tentative. Agencies, like courts, tend to address questions of methodology directly only when there is interpretive disagreement requiring an agency to explain its reasoning process. This is common today in hotly-contested adjudicatory or rulemaking proceedings. By contrast, in antebellum America, most administrative adjudication was informal and there was no required rulemaking process.

In this context, interpretive methodology must be discerned mostly from the administrative practices of line agencies. Officials provided interpretations in various documentary forms but only rarely attended to the meta-question of how statutes should be interpreted. In Part III, the interpretive practices of Attorneys General are considered. Opinions of the Attorneys General tended to be somewhat more self-conscious about method, particularly as these officers began to see their opinion-writing function as quasi-judicial. We will look at both sources of methodological evidence, but the results thus far are suggestive at best. The Article then concludes with some reflections on lessons learned and mysteries yet unsolved concerning agency interpretation in antebellum America.

EMM

Judicial deference to agency interpretations

In "When regulations collide" (January, 2009) I pointed out some discussions of Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, et al. when the U.S. Supreme Court heard oral argument. The Court's decision was announced on June 22. See "EPA's New Source Performance Standard Does Not Apply to Discharges of Mining Slurry Regulated Under Section 404 of the Clean Water Act" by Katharine E. Allen and Robert J. Uram on Sheppard Mullins' Real Estate and Construction Law Blog for an excellent review of the Court's opinion and reasoning. In brief, the Court found that EPA interpretations of the applicable statutes and regulations were neither plainly erroneous nor inconsistent with the statutes and regulations and therefore deferred to them. EMM

New administrative law articles

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

• Bamberger, Kenneth A. and Deirdre K. Mulligan. Privacy decisionmaking in administrative agencies. 75 U. Chi. L. Rev. 75-107 (2008). [H]|[L]|[W]
• Darcy, Deryn. Note. Credit rating agencies and the credit crisis: how the "issuer pays" conflict contributed and what regulators might do about it. 2009 Colum. Bus. L. Rev. 605-668. [H]|[L]|[W]
• Dake, Raymond. Note. The great compromise: overcoming impasse in interstate water compacts through the use of alternative dispute resolution. 77 UMKC L. Rev. 789-810 (2009). [H]|[L]|[W]
• Ernst, Daniel R. The politics of administrative law: New York's anti- bureaucracy clause and the O'Brian-Wagner campaign of 1938. 27 Law & Hist. Rev. 331-371 (2009). [H]|[L]|[W]
• Felter, Edwin L., Jr. Accountability in the administrative law judiciary: the right and the wrong kind. 86 Denv. U. L. Rev. 157-193 (2008). [H]|[L]|[W]
• Fong, Matthew. Case note. Fueling change: judicial review of CAFE standards. (Center for Biological Diversity v. National Highway Traffic Safety Administration, 508 F.3d 508, 2007.) 77 U. Cin. L. Rev. 759-782 (2008). [H]|[L]|[W]
• Kolber, Michael. Rulemaking without rules: an empirical study of direct final rulemaking. 72 Alb. L. Rev. 79-115 (2009). [H]|[L]|[W]
• McNew, B. Seth. Regulation and supervision of microfinance institutions: a proposal for a balanced approach. 15 Law & Bus. Rev. Am. 287-309 (2009). [H]|[L]|[W]
• Roberts, Christopher E. Comment. Can I still Google My Yahoo? Reframing the net neutrality debate--why legislation actually means deregulation. 77 UMKC L. Rev. 765-787 (2009). [H]|[L]|[W]
• Snodgrass, Greg. Note. Business solutions to the alien ownership restriction. 61 Fed. Comm. L.J. 457-482 (2009). [H]|[L]|[W]
• The Reality of Carbon Taxes in the 21st Century. Articles by Janet E. Milne, Stefan Speck, Mikael Skou Andersen, David G. Duff, Robert H. Cutting and Lawrence B. Cahoon. 10 Vt. J. Envtl. L. 1-179 (2008). [H]|[L]|[W]
  • Milne, Janet E. Carbon taxes in the United States: the context for the future. 10 Vt. J. Envtl. L. 1-30 (2008). [H]|[L]|[W]
  • Speck, Stefan. The design of carbon and broad-based energy taxes in European countries. 10 Vt. J. Envtl. L. 31-59 (2008). [H]|[L]|[W]
  • Andersen, Mikael Shou. Environmental and economic implications of taxing and trading carbon: some European experiences. 10 Vt. J. Envtl. L. 61-85 (2008). [H]|[L]|[W]
  • Duff, David G. Carbon taxation in British Columbia. 10 Vt. J. Envtl. L. 87-107 (2008). [H]|[L]|[W]
  • Cutting, Robert H. and Lawrence B. Cahoon. The gift that keeps on giving: global warming meets the common law. 10 Vt. J. Envtl. L. 109- 179 (2008). [H]|[L]|[W]

My apologies for the delay in posting this. EMM

Recommended reading

Considering the overlap between "takings law" and administrative law, I commend to you a thoughtful essay by Ben Barros (Widener) on the PropertyProf Blog, "What’s At Stake in Stop the Beach Renourishment". Prof. Barros discusses the U.S. Supreme Court's choices in Stop the Beach Renourishment v. Florida Department of Environmental Protection. Can a court do what is forbidden by the Fifth and Fourteenth Amendments to the executive and legislative branches? In this case, the Florida Supreme Court states that the property right claimed by the plaintiffs and taken by the state never existed, so no compensation is required. Whatever the U.S. Supreme Court decides, the reasons for its decision will have a huge impact on the regulation of property rights. EMM

Practitioner alert: Stimulus program traps

On the Government Contracts Blog from Sheppard Mullin Richter & Hampton LLP, David S. Gallacher discusses "ARRA Risks -- Traps for the Unaware".

While the promise of the $787 billion federal stimulus package is no doubt alluring to many companies, receiving Stimulus funds does not come without strings attached, posing risks for the unwary recipient.

[Outline:]

• Rules and Restrictions Apply to All Purchases Using Stimulus Funds.
• Different Rules May Apply Depending on Whether the Stimulus Funds Are Distributed by the Federal Government or by a State or Local Government.
• Untrained Contracting Personnel.
• Quarterly Reporting Requirement.
• Buy American.
• Prevailing Wage Rates.
• Whistleblowers.
• Audit Rights.
• Modifying the Regulations Moving Forward.

While the Stimulus Act no doubt presents some attractive business prospects, we caution companies to enter the process with their eyes wide open, fully aware of the associated risks.

Recommended. EMM

Improper delegation of power to an attorney

From the Law of the Land blog of Patty Salkin (Albany), "Attorneys for Plan Commission Lack Authority in a Mediation to in Essence, Approve Subdivision Application".

Following denial of its request for primary plat approval for a subdivision, [the developer] appealed and the trial court ordered mediation. Eventually the [parties] reached a written settlement agreement ... providing that [the developer] submit a revised primary and sketch plan ... then the [plan] Commission would, at its next regular meeting, approve the Agreement ... [The developer] made the agreed upon submission, and the Commission met as scheduled, but ... voted to reject the Agreement. The trial court ordered the Agreement be enforced ...  Although the Commission complied, the trial court found that the Commission acted in bad faith in failing to approve the subdivision after having granted its attorneys (who had agreed to the Agreement) full settlement authority. However, the trial court said that the Commission could not be sanctioned therefore since governmental entities are not subject to sanctions ...  [T]he Court of Appeals ... agreed that the Commission was immune from sanctions, [but] found that held that the Commission did not act in bad faith.

The Indiana Supreme Court reversed in part, finding that government entities are not exempt from sanctions under the State ADR Rules, further noting that when governmental entities enter into mediation agreements in court, they are on the same basis as any other litigant and subject themselves to the Court’s authority to control actions, including the imposition of sanction for noncompliance.  The [Supreme] Court agreed, however, that the Commission did not act in bad faith for failing to approve the subdivision because such action remained subject to the Commission’s final approval at a public meeting. Specifically, the Court agreed with the Commission that it is precluded from delegating authority to its attorneys to approve subdivision plans pursuant to a mediation agreement.

EMM

Theory: Agency self-limitation

Elizabeth Magill (Virginia) has published "Agency Self-Regulation" on bepress. Abstract:

Discretion is at the center of most accounts of bureaucracy. Legal scholars in particular have called for agency supervisors, such as Congress, the courts, or the President, to tame that agency discretion. Strangely absent from these accounts is a ubiquitous phenomenon: administrative agencies routinely limit their own discretion when no source of authority requires them to do so.

This Article aims to create a category of such “self-regulation” and argue that scholars have been mistaken to ignore it. It first defines the category of self-regulation, including the feature of administrative law that makes the category interesting, which is that courts will under certain conditions force agencies to follow their self-regulatory measures. That feature of administrative law gives agencies some capacity—albeit limited—to credibly commit to the stability of their self-regulatory measures. The Article next identifies what an agency can accomplish by self-regulating. That includes controlling delegation within the agency, inducing reliance by outside parties, protecting agencies’ policy choices into the future and from political interference today, and producing public goods like information or reputation. Finally, the Article concludes by demonstrating that serious study of self-regulation could change the way we understand agencies and the need for and utility and wisdom of various controls on their behavior.

EMM

Arising from contract or statutory obligations?

When the state regulates the contractual relations between private parties, does the matter "arise" from the contract or from the statutory requirements of the regulation? This issue arose in a recent Arizona case where a tile contractor appealed from a decision of the state Registrar of Contractors that it had failed to perform in "a professional and workmanlike manner". Keystone Floor & More, LLC, v. Arizona Register Of Contractors, an Arizona Agency; and Bum Suk Kang, Ariz. App. No. 1 CA-CV 07-0900, filed July 2, 2009.

The trial court affirmed the Registrar's decision and awarded the customer attorneys' fees for the matter in the trial court (not for the matter before the Registrar), under a state law providing for attorneys' fees for the prevailing party in matters arising under contract. The contractor appealed the award of attorneys' fees, arguing that the action in the trial court arose under its statutory obligations under the regulatory scheme. The Court of Appeals agreed, reversing the trial court. While a contract was a predicate to the regulatory action, the matter before the trial court arose from the Registrar's decision which was based on the contractor's statutory obligation to perform in "a professional and workmanlike manner". If the customer had sued the contractor in Superior Court for breach of contract, the result would have been different.

The interface between administrative procedures and the common law forms of action, even the single form of action under the Rules, can get interesting. Results in cases like this one will depend on the wording of statutes, regulations, and rules of civil procedure. YMMV. EMM