Administrative Law Prof Blog

A compliance case

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

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

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

New administrative law articles

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

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

EMM

Student writing assignment ideas

Jason Sowards, "Legal Research Project: Client Compliance Documents, Sookie Stackhouse Style" on the RIPS Law Librarian blog:

I try to give students in my specialized legal research class in administrative law a practical final project that integrates the research strategies and resources we've discussed throughout the course. Last year, I gave them a regulation that was open for comment and asked them to document the research they conducted to become familiar with the subject matter of the regulation and then draft a comment to the proposed regulation (they didn't have to submit to the agency). ...

After lamenting to a coworker about the dearth of "fun" regulations, she suggested I make the students prepare a client-centered document. Because one of the goals of an administrative lawyer is to counsel clients on how to comply with regulations, it seemed like a good idea to ask students to prepare a personalized guidance document for a piece of recently enacted legislation. I gave them a fact pattern, very loosely based on the HBO series "True Blood," which implicates the genetic non-discrimination in employment law passed last year.

They were asked to research the law and pertinent secondary practice materials and draft a layman's explanation of the law (which means I should not see sentences like "According to an article in the Harvard Law Review, employers are in violation of 42 USC 2000e-2(a) when..."). They are also expected to produce an annotated bibliography of the resources they relied on to draft this document (10 minimum).

I don't care as much about the document as I do about the research they conducted to produce the document. There are some forbidden employer practices discussed in the facts drawn directly from the law's legislative history. There is relatively old EEOC guidance that discusses genetic information and the proposed regulations to the new law (with comments) are available for examination as well. There is even an executive order.

EMM

New online tool for federal rulemaking: Regulation Room

New from Cornell Law School's Legal Information Institute:

Regulation Room is ... a pilot project that provides an online environment for people and groups to learn about, discuss, and react to selected rules(regulations) proposed by federal agencies.  It expands the types of public input available to agencies in the rulemaking process, while serving as a teaching and research platform. ...

CeRI [Cornell e-Rulemaking Initiative] cooperates with various federal agencies to select and present the proposed rules that are available in Regulation Room.  However, this is not a federal government site. Discussions on Regulation Room are moderated by CeRI students and faculty or other nongovernmental researchers collaborating with CeRI. The federal agencies whose rules are offered here collaborate in this research, in order to learn about the most effective Web 2.0 strategies for increasing public understanding and participation during rulemaking, but all content and operation are the sole responsibility of CeRI.

Regulation Room is a work in progress.  Services and applications will be added in phases and may be modified with experience.  This is an overview of our current plan:

Alert and Engage: Social networking services and other online and conventional outreach strategies will to used alert individuals and groups who may have an interest in proposed rules.  Our focus will be on reaching people and groups who might not learn about the rulemaking through traditional channels, and providing them enough information about the rule and the process to encourage them to participate.

Educate and Inform:   Materials about rulemaking and effective participation will be available, structured to allow people to learn about the process in as much detail as they feel they need.  For each specific rule,  summaries of the important issues and the agency’s reasoning,  as well as links to relevant primary and secondary materials, will make the legal and factual bases of the proposal more accessible.

Facilitate Reaction and Discussion:  A moderated blog will lead people through the major policy issues of the rule.  Users who want more detailed discussion will be offered a novel focused commenting function (”Dig In”) that allows them to highlight particular sections of the agency’s proposal and reasoning, and react specifically to those sections.  For both applications, comment threading will enable users to comment on the comments of others, as well as on the main post.

Encourage Comment Aggregation & Consensus-building:  Reaction and discussion will lead into a collaboration phase during which users can participate in drafting, and signing on to, collaborative comments.  Moderators trained in group facilitation will actively assist this phase.

Harness Technology to Manage Information:  Regulation Room is part of ongoing CeRI research into the use of natural language processing and other information management techniques to categorize and summarize public comments in rulemaking.

Emphasis in original. Thanks to beSpacific for the pointer. EMM

Australia: Government liability in negligence

New on bepress: "Government Liability in Negligence" by Mark Aronson (University of New South Wales). Abstract:

The tort reform legislation of most Australian jurisdictions includes provisions directed specifically at protecting government defendants from civil liability. The legislation makes it harder to sue for breach of statutory duty, regulatory failure, the exercise of ‘special statutory powers’, and negligent failure to inspect the roads. These changes reflect an assumption long held at common law that there is something different about alleging government negligence, at least where the government is exercising statutory powers or performing statutory duties. The cases and reformers have long searched for the answer to the question of what that ‘something’ might be. This article considers the common law, analyses the legislation and then concludes by suggesting that a more principled approach would, in fact, focus on the nature of the functions performed, rather than on the identity of the defendant.

Might be fun to help them out. Of course, we might make them just as confused as we are. EMM

OMG: Even the IRS may have to follow the law!

On Law.com, "Federal Judge Allows Class Action Over IRS Refund Notice to Proceed", by Shannon P. Duffy of The Legal Intelligencer:

Dealing another major setback to the IRS in the ongoing litigation over how it handled a massive $8 billion refund for a now-abandoned telephone excise tax, a federal judge in Harrisburg, Pa., has refused to dismiss a nationwide class action suit that says the agency's public notices about the availability of the refund violated due process.

The ruling in Swisher v. United States by U.S. District Judge John E. Jones III of the Middle District of Pennsylvania comes on the heels of a scathing decision in August from a federal appeals court in Washington, D.C., that revived a batch of similar suits alleging that the IRS' handling of the refund program violated the Administrative Procedures Act. ...

Taxpayers won a string of decisions in which courts ruled that the long-distance excise tax, created to pay for the Spanish-American War in 1898, simply didn't apply to modern technology. ...

In May 2006, the IRS announced that it would stop collecting the tax and would establish a program to provide refunds for the 41 months in which the tax was unfairly included on telephone bills. ...

Now the IRS is mired in another wave of litigation as taxpayers challenge the refund program as unfair, inadequately publicized, and designed to limit the number of refunds paid.

The Treasury Inspector General for Tax Administration found in 2007 that only about $3.8 billion of the $8 billion improperly collected by the IRS was actually paid back in refunds.

U.S. District Judge Ricardo M. Urbina dismissed three consolidated suits in 2008, but the U.S. Court of Appeals for the D.C. Circuit revived the cases in August 2009 with a blistering opinion that sharply criticized the IRS for using "creative" tactics to avoid paying refunds to all those eligible.

"When it finally conceded defeat on the legal front, the IRS got really inventive and developed a refund scheme under which almost half the funds remained unclaimed," D.C. Circuit Judge Janice Rogers Brown wrote in In re Long-Distance Telephone Service Federal Excise Tax Refund Litigation.

Brown said the IRS was trying to dodge responsibility under the Administrative Procedures Act by arguing that the refund scheme was "not a binding rule but only a general policy statement." Rejecting that argument, Brown wrote: "We conclude the notice bound the service, tax collectors and taxpayers. Accordingly, we reverse the district court's dismissal of appellants' claims made under the Administrative Procedures Act." While the Washington, D.C., case was on appeal, the Pennsylvania suit was filed on behalf of a class of non-filers who say they paid the telephone excise tax on their monthly phone bills, but were effectively denied access to the refund program because the IRS provided minimal notice.

The suit alleges that because the IRS failed to provide the non-filers with reasonable notice of the availability of the excise tax refund that complies with due process, the number of non-tax return filers who actually claimed a refund was extremely low.

The Treasury Inspector General reported that only 800,000 of the 10 to 30 million non-filers who were entitled to a refund actually filed the required special form to claim their refund.

Justice Department lawyers moved for dismissal of the suit, arguing that the case was barred by the Anti-Injunction Act, or AIA, and that the non-filers were required to file administrative claims for refunds.

... The AIA argument failed, Jones said, because the suit is not a refund suit.

Lead plaintiff Adam Swisher "does not seek a refund for the excise tax," Jones said, but instead "is contesting that the pertinent notices ran afoul of appropriate due process." As a result, Jones said, the relief sought in the suit does not "seek to restrain the assessment or collection of taxes, and the requested relief, if granted, could not result in impermissible restraints." For related reasons, Jones rejected the government's exhaustion argument, finding that the non-filer plaintiffs cannot be barred from suing solely because they failed to file an administrative refund claim.

Instead, Jones said, like the plaintiffs in the Washington, D.C., case, the non-filer plaintiffs are no longer seeking a refund but rather "seek to challenge the procedural obstacles the IRS inserted between the individual taxpayers and their right to file suit to recover unlawfully collected taxes."

These cases are well worth following from an administrative law perspective. Protected in large part by the AIA, the IRS has been able to live in its own procedural world answerable only to Congress when it pissed off enough people. Now it may be required to play by the same rules as other federal agencies. EMM

New administrative law articles

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

• Brauer-Rieke, Aaron K. Note. The FCC tackles Net neutrality: agency jurisdiction and the Comcast order. 24 Berkeley Tech. L.J. 593-615 (2009). [H]|[L]|[W]

• Herat, Enoka. Comment. Ninth Circuit v. Board of Immigration Appeals: defining "sexual abuse of a minor" after ... (Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 2008.) 84 Wash. L. Rev. 523-553 (2009). [H]|[L]|[W]

• Keller, Scott A. Depoliticizing judicial review of agency rulemaking. 84 Wash. L. Rev. 419-489 (2009). [H]|[L]|[W]

• Seidemann, Ryan M. Altered meanings: the Department of the Interior's rewriting of the Native American Graves Protection and Repatriation Act to regulate culturally unidentifiable human remains. 28 Temp. J. Sci. Tech. & Envtl. L. 1-47 (2009). [H]|[L]|[W]

• Thomas, Anderson Evan. Note. Remaining covered by the "near blanket" of deference: Berman v. Central Intelligence Agency and the CIA's continual use of exemption 3 to deny FOIA requests. (Berman v. CIA, 501 F.3d 1136, 2007.) 28 Miss. C.L. Rev. 497-520 (2009). [H]|[L]|[W]

EMM

Failure to exhaust administrative remedies

Another interesting discussion by J. Russell Jackson (New York City) on his Consumer Class Actions and Mass Torts blog, "Florida Federal Court Dismisses Class Action for Failure to Exhaust Administrative Remedies".

The Florida Insurance Statute allows a policyholder to challenge an insurer's rate by filing a grievance with the insurance commissioner.

In Screnci v. State Farm Mutual Automobile Insurance Co., No. 9:09-cv-80510-KAM, 2009 WL 3667091 (S.D. Fla. Oct. 26, 2009), the plaintiff brought a putative class action challenging the way that the defendant calculated its premiums and expenses. ... The court in Screnci granted the defendant's motion to dismiss for failure to exhaust administrative remedies. The court noted that two intermediate appellate court cases hold that "challenges to rates charged by insurers must first be administratively exhausted ...  Plaintiff argued that the remedies that are available administratively are inadequate because the Office of Insurance Regulation cannot award attorneys' fees.  But the court rejected this argument, noting that:

Plaintiff's request for attorneys' fees is not a claim that justifies bypassing an administrative body.  To the contrary, Florida law is clear that the recovery of attorneys' fees is ancillary to substantive claims for relief.

Mr. Jackson concludes,

Particularly where administrative agencies are charged with setting or approving rates and charges, it is important that challenges to those rates and charges are adjudicated first by the agency with regulatory responsibility rather than courts.  Indeed, Florida's system for policyowner challenges of rates provides for agency review, and then appeal of the agency decision to a Florida District Court of Appeal.

Defense lawyers should not forget to consider whether to assert defenses like the filed rate doctrine and the failure to exhaust administrative remedies when they are dealing with heavily regulated industries.

EMM

Theory: When regulation by litigation is not a good thing

The belief that every wrong should have a remedy pushes courts into the regulatory business when the other branches of government have failed to take effective action and folks are getting shafted. There is much discussion in academia and the blogosphere as to whether judicial regulation is appropriate if the elected branches choose not to act. On his Consumer Class Actions and Mass Torts blog, J. Russell Jackson (New York City) discusses a recent decision by Judge Weinstein of the Eastern District of New York in "UPDATE: Judge Weinstein Dismisses Pre-Paid Phone Card Class Action". Mr. Jackson reviews the background of the case and the court's opinion, and concludes:

Judge Weinstein observed that providing relief to the class would require using cy pres and fluid recovery remedies, and complained that these types of remedies have been rejected by appellate courts.  It also would require injunctive relief, which "would engage the court in inappropriate detailed continuing supervision of the industry."  Id. at *19.

Ramirez is an important precedent, but it is all the more important because its author historically has been such an advocate of using courts to solve social problems.  Ramirez is an articulate recognition of the principle that regulation by litigation can create chaos and inconsistencies in the law that do not help consumers or industry.  Where that is the case, the answer is not serial class actions, but rather uniform government action, and sometimes the wisest course of action is for a court to stay its hand.

EMM

Lesson for regulators: You can't regulate based on nonpublic information

Criminal matters sometimes arise in an administrative context, and vice versa. Welcome to the seamless web of the law. On his Customs Law blog, Lawrence Friedman (Barnes/Richardson, Chicago) has posted an instructive story, "Seventh Circuit on ITAR".

Mr. Pulungan tried to export some riflescopes to Indonesia. Believing there to be an arms embargo on Indonesia, he planned conceal the actual destination by transshipping via Saudi Arabia. In reality, the embargo had been lifted in 2005, two years before the attempted export.

Mens rea but no actus reus. But he was not off the hook.

The scopes, however, are arguably controlled by the International Traffic in Arms Regulations [ITAR] as riflescopes "manufactured to military specifications." Importantly, the law provides that the designation "in regulation" of items as defense articles is not subject to judicial review. As a result, the district court instructed the jury to accept the State Department's designation of the rifle scopes as being manufactured to military specifications even though the responsible witness was not able to explain what those specifications entail. [Mr. Pulungan] was found guilty by a jury of trying to export without a license and sentenced to 48 months in prison.

There was an administrative law issue on appeal.

The first issue was whether the designation of the 'scopes as manufactured to military specifications was "in regulation" and, therefore, beyond judicial review. The Seventh Circuit recognized that it would not be possible for the government to list every single 'scope made to military specs and that a narrative description was an efficient way to draft the regulation. However, the Court also stated that the designation of the specific 'scopes at issue in this case was not in the regulations. It was known to the manufacturer (presumably via a commodity jurisdiction decision) and to other industry "insiders" but there is no evidence the status of these specific 'scopes was known to the defendant.

Unlike a regulation, which is published for the world to see, a commodity jurisdiction decision is essentially private. The State Department, according to the Court, cannot be permitted to regulate (actually criminalize) behavior based on a document kept secret in a file. Thus, the Court held that in a case such as this, the government is required to prove, not just assert, that the products are covered by the regulation. In this case, that means the government needed to prove that the 'scopes were manufactured to military specs.

The second issue dealt with the defendant's mens rea.

On the second point, the Court refused to hold that the knowing effort to violate a non-existent arms embargo transferred to the attempted unlicensed export. In the end, though, it did not matter because the U.S. was unable to prove that the defendant knew the 'scopes were manufactured to military specs.

Mr. Friedman points out that the State Department can fix these problems by making the list of items covered by the ITAR public. Meanwhile, Mr. Pulungan should be very appreciative of his appellate attorneys. EMM

New administrative law articles

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

• Bannister, Mark and Jon Tholstrup. Eligible telecommunications carrier designation, the Kansas case study 1997-2008. 18 Kan. J.L. & Pub. Pol'y 372-391 (2009). [H]|[L] |[W]
• Cushman, Nathaniel. Comment. The impact of illegal tax guidance: Notice 2008-83. 62 Tax Law. 867-896 (2009).
• Ellig, Jerry and Jerry Brito. Toward a more perfect union: regulatory analysis and performance management. 8 Fla. St. U. Bus. L. Rev. 1-55 (2009). [H]|[L]|[W]
• Griggs, Burke, John Peck and Xue Yunpeng. Comparative water law and management: the Yellow River Basin in western China and the state of Kansas in the western United States. 18 Kan. J.L. & Pub. Pol'y 428-461 (2009). [H]|[L] |[W]
• Jabroski, Jennifer M. Note. Reining in the horse racing industry: a proposal for federal regulation of steroid use in racehorses. 1 Ky. J. Equine, Agri., & Nat. Resources L. 67-85 (2008-2009). [H]|[L]|[W]
• Leonard, Elizabeth Weeks. Public health for a brave new world. (Reviewing Lawrence O. Gostin, Public Health Law: Power, Duty, Restraint, 2d ed.) 9 Hous. J. Health L. & Pol'y 181-201 (2009). [H] |[L ]|[W]
• Patsner, Bruce, M.D. New "home brew" predictive genetic tests present significant regulatory problems. 9 Hous. J. Health L. & Pol'y 237-277 (2009). [H] |[L ]|[W]
• Peng, Shin-yi. Regulating wireless communications: Taiwan's experience in comparative perspective. 22 Colum. J. Asian L. 259-282 (2009). [H]|[L]|[W]
• Ross, Courtney E. Comment. The role of administrative law in regulating "mad cow disease" as explained in Creekstone Farms Premium Beef, LLC v. Department of Agriculture. (Creekstone Farms Premium Beef, LLC v. Dep't of Agric., 539 F.3d 492, 2008.) 1 Ky. J. Equine, Agri., & Nat. Resources L. 123-133 (2008-2009). [H]|[L]|[W]
• Toby, Milton C. State regulation of complementary and alternative veterinary therapies: defining the practice of veterinary medicine in the 21st century. 1 Ky. J. Equine, Agri., & Nat. Resources L. 29-47 (2008- 2009). [H]|[L]|[W]

EMM

When don't you get "notice and an opportunity to be heard"?

Another interesting item posted by Harvey Randall on his New York Public Personnel Law looks at the question of when the "notice and an opportunity to be heard" of due process does not require either. "Termination by operation of law".

In some instances a public officer or employee otherwise entitled to a pre-termination hearing before he or she may be dismissed is automatically removed from his or her position by operation of law without being given any "notice and hearing."

For example, Section 30(1)(e) of the Public Officers Law provides that a public officer, such as a police officer, automatically vacates his or her position if he or she is convicted of a felony or a crime involving a violation of the individual's oath of office.

Mr. Randall discusses a case where a sanitation worker convicted of insurance fraud was terminated. The result turned on the elements of the crime and the definition of "a crime involving a violation of the individual's oath of office. The "oath of office violation" had to be related to the employee's job with the City, and the elements of the crime did not require this for conviction. To bypass the requirements of notice and an opportunity to be heard under circumstances like this case, there need to be no questions of law or fact left to decide - a hearing would be a waste of time and resources. In this case, somebody had to look at the conviction and decide if it was related to the job, and that requires a hearing. (Mr. Randall notes that the City was able to can him eventually.) EMM

"He did the same thing I did, and they just slapped him on the wrist"

Two goodies today by Harvey Randall on his New York Public Personnel Law blog. First, "Same offense, different disciplinary penalties imposed".

Two different employees serving in the same agency are charged and found guilty of the same type of misconduct but the appointing authority imposes different penalties on each. Is this something that the courts will find arbitrary? ... The appointing authority's electing to impose different penalties for essentially the same type of offense sometimes results in an employee filing a law suit objecting to the penalty on the grounds that another employee who committed the same offense received a lighter punishment. Case law suggests that such challenges will receive little sympathy from the courts.

If the court find that the penalty imposed does not offend its sense of "fairness" with respect to nature of the offense, it will typically uphold the penalty notwithstanding the fact that a different penalty was imposed on another individual guilty of the same offense, .... In other words the courts do not consider the fact that a different penalty was imposed on another employee charged with the same offense relevant in most instances.

In one case, however ... the Appellate Division was persuaded that a certain penalty was unfair because lesser penalties had been imposed on other employees found guilty of more egregious misconduct.

In my experience, this can be a "lawnmower law" issue for clients - it is counterintuitive to those who are not knowledgeable about how civil rights work. Attorneys need to be ready to explain why agencies are allowed to apply different penalties for what appears to be the same misconduct. EMM

Advice on cooperating with investigators

On his California License Law Blog, Fredrick M. Ray has posted "Should You Cooperate with the Board Investigator?" Opening paragraph:

One of our most frequent issues at the firm is clients calling who have become the subject of a California licensing board investigation.  Investigations are handled primarily two ways, either by a enforcement analyst or technician inside a licensing agency's offices, or in the field by outside investigators who work for either the board itself (such as the Medical and Dental Boards) or the Department of Consumer Affairs (all other boards).

He describes how his jurisdiction handles such investigations, some traps for the unwary, and concludes with:

Having cautioned clients about the many possible traps in a board field investigation, we still counsel that the client should be cooperative,  Examining the difference between a police investigation and a licensing agency investigation is instructive to explain why. The difference between an investigation by a board investigator concerning possible board discipline and a police investigator in a criminal investigation is that a state licensing agency has much broader powers to punish, using a much lower standard of proof, than the police investigator can through the D.A. and the courts.  Therefore, while a citizen who exercises his rights against self incrimination may shield himself from prosecution successfully, a licensee will rarely if ever deter a licensing agency from seeking and imposing discipline through non-cooperation if the licensing agency believes its licensee is incompetent, impaired or has committed serious misconduct.  Licensing agency investigations arise from concerns for public safety.  Therefore, the licensee should look at the investigation as an opportunity to reassure the licensing agency that the licensee is competent and safe to practice.  Finally, above all, be honest.  Betraying the trust of the licensing agency can be seen as worse than the conduct that triggered the investigation in the first place.

A useful comparison. Every jurisdiction is different, of course, but this is a good outline for a client advice checklist on the subject. The last sentence is really important. EMM

Theory: Admin law as constitutional common law

New on SSRN: "Ordinary Administrative Law as Constitutional Common Law" by Gillian E. Metzger (Columbia). Abstract:    

Last term, in Federal Communications Commission (FCC) v. Fox Television Stations, the Supreme Court expressly refused to link ordinary administrative law to constitutional concerns, insisting that whether an agency action is “arbitrary and capricious” and whether it is unconstitutional are separate questions. In this article, I argue that Fox is wrong. The Court’s protestations aside, constitutional law and ordinary administrative law are inextricably linked, with the result that a fair amount of ordinary administrative law qualifies as what Henry Monaghan famously termed constitutional common law. Its doctrines and requirements are constitutionally informed but rarely constitutionally mandated, with Congress and agencies enjoying broad power to alter specific administrative mechanisms notwithstanding their constitutional aspect.

Recognizing the interrelationship between constitutional law and ordinary administrative law is important both for the ongoing debate over the legitimacy of constitutional common law and for proper appreciation of the role administrative agencies can play in our constitutional order. Underlying many attacks on constitutional common law is a view of constitutional law as having a narrow and determinate scope, but the interwoven relationship between ordinary law and constitutional law in the administrative law context suggests this view of constitutional law is a false one. In addition, seeking to enforce constitutional norms through ordinary administrative law better accords with constitutional principles than efforts to segregate out the two and is likely to prove less intrusive to the policymaking prerogatives of the political branches. As a result, the better critique is not the extent to which constitutional common law surfaces in administrative contexts, but rather the lack of transparency that accompanies it.

EMM

An administrative law story

New on SSRN: "Geier v. American Honda Motor Co.: A Story of Statutes, Regulation and the Common Law" by Peter L. Strauss (Columbia). Abstract:    

This essay was written as a contribution to one of Foundation's "Story" series. In Geier, a lawsuit had been brought on behalf of a teenager whose injuries from an accident might have been lessened if her car had contained an airbag. Plaintiffs sued on the straightforward basis that the design choice to omit a safety device of proven merit made the car unreasonably hazardous. Federal safety regulations had required the maker of her car to install some such device as an airbag in at least 10% of the cars it made the year it made her car - but her car had only a manual lap-and-shoulder belt (which she had used). Just weeks before her accident, Congress had passed a statute requiring airbags in ALL cars - but not for several model years into the future. In the Supreme Court, whether federal law allowed the case to proceed proved to be a matter as complex as its theory of liability was simple. At issue was a statute that in one section gave the federal government exclusive authority to set auto safety standards and in provided for the saving of common law claims. How did these two provisions interact? The essay shows just how complicated the question was by looking at the history of both design defect liability (still nascent at the time Congress passed the legislation in question) and federal standards on airbags (finally promulgated only after more than a decade of wrangling). Unsurprisingly, this background produced a variety of perspectives - and outcomes - in state and federal cases prior to the suit at issue here. Introducing even further difficulties was a contemporaneous set of Janus-faced Supreme Court decisions on federal pre-emption of state tort law. Only after taking all of these considerations into account does the essay explore the litigation choices of plaintiffs’ and defense counsel, as well as the Geier opinions. Drawing on two very recent Supreme Court decisions invoking the relationship between regulatory and judge-made law, the essay invites the reader to view the case less in terms of conflict between federal prerogatives and state sovereignty, and more as involving the accommodation of the competing modes of lawmaking and the influence of time’s passage in the modern state.

EMM

Electronic rulemaking

New on SSRN: "Legal Frameworks and Institutional Contexts for Public Consultation Regarding Administrative Action: The United States" by Peter L. Strauss (Columbia). Abstract:    

Written for a forthcoming book on e-governance and e-democracy, this essay summarizes the current state of play in electronic rulemaking in the United States. It thus focuses on a context in which the use of electronic consultation by “executive branch” actors engaged in policy-making has been developing for over a decade, and has reached a point of considerable, although not final maturity. Initially developed haphazardly, agency-by-agency, it is now (albeit with friction in the gears) moving towards a centralized regime. The practice is rarely consultative in the full sense the book as a whole will address; while the public is given opportunities for input, and the input processes are transparent in varying degrees, online exchanges in the nature of a conversation or round-table are not yet imagined in conventional rulemaking - although first steps in that direction have been taken under the aegis of the Office of Science and Technology Policy.

Those of us who began our careers more than ten years ago may be tempted to think of e-government as either speculative or immaterial. But it is happening now, and affects administrative actions more than we see from outside. EMM

HIPAA v. FOIA

New on SSRN: "Jumping Off the Merry-Go-Round: How the Federal Courts Will Reconcile the Circular Deference Problem between HIPAA and FOIA" by Catherine Cameron (Stetson). Abstract:    

This Article introduces the conflict between HIPAA and FOIA in Part II, which explains the provisions of HIPAA and FOIA and the HHS regulations that cover access to medical records held by the federal government. Part II delineates the practical realities agency personnel will face when a record request falls under both HIPAA and FOIA. Part IV of this Article highlights how two states have dealt with HIPAA’s conflict with state statutes to see how those courts have resolved a similar conflict. Part V delves into the case law interpreting Exemption Six of FOIA to conclude that HHS’s assessment that Exemption Six should not cause a conflict with FOIA [sic] is inaccurate. Finally, this Article argues that a federal court should decide that public access to a medical record held by a government health provider is dictated by FOIA’s Exemption Six instead of HIPAA and HHS regulations.

EMM

Theory: Judicial review of Presidential decisions

New on SSRN: "The Reviewability of the President's Statutory Powers" by Kevin M. Stack (Vanderbilt). Abstract:    

This Article argues that longstanding doctrines that exclude judicial review of the determinations or findings the President makes as conditions for invoking statutory powers should be replaced. These doctrines are inconsistent with the fundamental constitutional commitment to reviewing whether federal officials act with legal authorization. Where a statute grants power conditioned upon an official making a determination that certain conditions obtain - as statutes that grant power to the President often do - review of whether that power is validly exercised requires review of the determinations the official makes to invoke the power. Review of those determinations is commonplace with regard to government actors subject to the Administrative Procedure Act. But because the Administrative Procedure Act does not apply to the President, courts have resorted to old common law doctrines barring review of the determinations the President makes to invoke statutory authority. While these doctrines had a justification when judicial review of the President’s actions occurred in individual damages actions against officials who implemented the President’s orders, they no longer do and should be abandoned. Instead, judicial review of the President’s claims of statutory power should extend, as it does for other officials, to all the determinations necessary to evaluate whether the President acts within the limits Congress has prescribed. To better describe and defend such review, this Article argues that we should conceive of it as a branch of ultra vires review, including review of the legal, factual, and law-as-applied-to-fact conclusions necessary to determine whether the President acts within the boundaries of statutory authority.

Fat chance. EMM

A survey of SCOTUS administrative law decisions, 2005-2009

New on SSRN: "Administrative Law in the Roberts Court: The First Four Years" by Robin Kundis Craig (Florida State). Abstract:    

Given Justice David Souter’s retirement in the summer of 2009, the four U.S. Supreme Court terms that began in October 2005 and ended in June 2009 constitute a first distinct phase of the Roberts Court. During those first four terms, moreover, the Court decided a number of cases relevant to the practice and structure of administrative law. This Article provides a comprehensive survey and summary of the Supreme Court’s administrative-law-related decisions issued during this first phase of the Roberts Court. It organizes those decisions into three categories. Part I of this Article discusses the Supreme Court decisions that affect access to the federal courts, covering issues such as standing, jurisdiction, causes of action, statutes of limitation, and exhaustion of administrative remedies. Part II presents the Roberts Court cases that have addressed federalism and the Supreme Court’s role in defining the relations between and the respective authority of the state and federal governments, including the imposition of Due Process requirements on states, dormant Commerce Clause limitations on states, federal preemption of state law, and the increasing role of federalism concerns as a factor in the Court’s statutory interpretation. Part III summarizes those decisions that give insights into the Robert Court’s perspective on the “proper” role of the federal courts in a tripartite federal government, covering issues such as constitutional interpretation, the Court’s interactions with Congress, federal court review of federal agency actions, and Chevron deference. While acknowledging that these decisions do not allow for any absolutely consistent principles to be discerned, this Article nevertheless concludes that a strong majority of the Justices are quite comfortable with the Court’s roles as constitutional interpreter and as constitutional mediator between governments and citizens and between states and the federal government. However, an admittedly weaker majority also otherwise prefers to defer to other branches of government — Congress and agencies — with respect to the implementation of statutes, even when doing so sacrifices some federal court prerogatives.

EMM