Administrative Law Prof Blog

Basics

With all our discussions about the details of administrative law, sometimes we forget that in the United States, at all levels of government, our executive system works pretty well.  Sometimes, I think, better than we deserve.  Almost all American civil servants are honest, have reasonable sound judgment, and obey the law as they understand it.  This is not to say they don't make mistakes, and the practice of administrative law arises from errors people in government make in implementing the law.  But, amazingly, the system by and large works most of the time, for most people.  Imaging what it would be like if any substantial number of civil servants and legislators were corrupt, stupid, or unconcerned about the law.  I commend to you Prof. Haider Ala Hamoudi's (Pittsburgh) discussion of Iraqi public administration on his Islamic Law In Our Times blog at "Governance" and "Ethnic and Sectarian Quotas in the New Iraq".  From the former:

The point is, however, nobody demonstrated over Allawi's right to govern, or Maliki's, or anyone else's. The continuing fear is civil war in Western press and commentary, but nobody seems particularly excited about the political impasse, which is an odd way to prelude a civil war.  If you can't get people onto the streets just to say your candidate should govern, it seems hard to believe they'll go fighting for you.  For this and many other more important reasons, it seems clear to me that they don't care because the moment of civil war has passed in Iraq.  ...

What they care about is not sitting in the damn heat which is higher than 120 F in the summer without any electricity. They care about clean water.  They care about being able to get a license to marry without sitting in some courthouse for six hours, and that's if they are willing to pay at least $250 in bribes.  Otherwise it's measured in days.  The problem in government legitimacy in Iraq is not about Allawi, Mutlaq or Maliki, it's not about Sunnis and Shi'is, it's about truly awful governance.  The government is absolutely terrible at just about everything it does. 

And from the latter:

... Or to take another context where class is MORE important than sect or ethnicity if you want something done in a government office, it's best if you know someone there who can help you.  More often than not, that's a relative, or a relative of a friend, or something.  So it could be someone in your social class--you are a Shi'i member of the high class Hunting Club, your Kurdish friend from college is too, his daughter is having a problem at a Ministry where you have a high position.  That Kurd is going to have a heck of a lot easier time getting her problem solved with your help than some Shi'i who walks in, chants a few things about Imam Ali and hopes that the staff help him out because he is a Shi'i just like the Minister.  And the Kurd wouldn't BE in the Hunting Club if she weren't from the right family.  Just like no Shi'i would be there from Sadr City, they'd never be allowed in.  The Sadrist who wants something done finds someone if he can in the neighborhood who works at the Minsitry, or maybe a local council member who might know somebody or something.  Better to be the Kurd in the Hunting Club in any event.

I submit that it is important for us to remember that our problems, however difficult and expensive, pale in comparison. EMM

Free Enterprise Fund v. PCAOB

We sometimes look at Administrative Law as Con Law III - Due Process.  But, sometimes other pieces of the Constitution come in to play as well.  Today's U.S. Supreme Court decision in Free Enterprise Fund v. PCAOB is an example.  From U.S. Law Week - Supreme Court Today (BNA):

Free Enterprise Fund v. Public Company Accounting Oversight Board, No. 08-861. Provisions in the Sarabanes-Oxley Act of 2002 setting out the mechanism for removing a member of the Public Company Accounting Oversight Board violate the Constitution's separation of powers because they unduly restrict the president's constitutional authority over an inferior (as opposed to a principal) executive officer. The removal mechanism in Sarbanes-Oxley calls for removal of a PCAOB member by the Securities and Exchange Commission only for cause, and members of the SEC themselves are removable by the president only for cause; the dual for-cause limits violate the Constitution because they make the board not accountable to the president and the president not responsible for the board. The Sarbanes-Oxley provision governing removal of a PCAOB member is severable from the rest of the act. The PCAOB structure does not violate the Appointments Clause of the Constitution.

How Appealing has links to the opinion and the transcript of oral arguments.  EMM

Defining Deference Down

New on SSRN: Randolph J. May (The Free State Foundation), "Defining Deference Down, Again: Independent Agencies, Chevron Deference, and Fox". Abstract:

In 2006, I published an article in the Administrative Law Review entitled "Defining Deference Down: Independent Agencies and Chevron Deference." In that article I posed the question, “Should the statutory interpretations of independent regulatory agencies, such as the FCC’s determination at issue in Brand X, be accorded a lesser degree of judicial deference than those accorded to executive branch agencies?” In response, I suggested that “a reading of Chevron that accords less deference to independent agencies’ decisions than to those of executive branch agencies would be more consistent with our constitutional system and its values.”

In this follow-on article, I discuss last Term's decision in FCC v. Fox Television Stations, Inc., in which the Supreme Court affirmed a change of FCC policy to the effect that even isolated, non-repetitive incidents of indecent speech could be sanctioned. While the Court in Fox did not address Chevron directly, there were certainly Chevron-like echoes as the Justices debated the relevance of the FCC’s political accountability (or lack thereof) to determine whether the proper standard of review should be more or less searching. With "Defining Deference Down," based on what I see as the principal political accountability rationale underpinning Chevron, my project was to begin a more robust dialogue concerning whether a less deferential judicial review standard of independent agency actions would be more consistent with core separation-of-powers values. While I expect Fox will be seen foremost through the lens of a more conventional administrative law “change of agency policy” case, I have hopes it will also be an impetus for the dialogue that I aim to further with this new article.

An interesting sidelight discussed in the article relates to Justice Scalia's citation of Solicitor General Elena Kagan's "Presidential Administration" article in support of his view that the decisions of independent agencies should not be subject to more searching judicial scrutiny than those of executive agencies. In fact, in "Presidential Administration," Kagan explicitly advocates that independent agencies should receive less Chevron deference than executive agencies because they are less politically accountable.

Thanks to Lawrence B. Solum, Legal Theory Blog, for the pointer. EMM

Explaining the Importance of Public Choice for Law

New on SSRN: D. Daniel Sokol (Florida), "Explaining the Importance of Public Choice for Law". Abstract:

The next generation of government officials, business leaders and members of civil society likely will draw from the current pool of law school students. These students often lack a foundation of the theoretical and analytical tools necessary to understand law’s interplay with government. This highlights the importance of public choice analysis. By framing issues through a public choice lens, these students will learn the dynamics of effective decision-making within various institutional settings. Filling the void of how to explain the decision-making process of institutional actors in legal settings is Public Choice Concepts and Applications in Law by Maxwell Stearns and Todd Zywicki.

Because of its analytic depth, Public Choice Concepts is likely to be recognized as the leading work on the subject for some time. Stearns and Zywicki’s contribution to public choice scholarship is important and compelling. Part I of this review addresses common misperceptions about public choice, provides a descriptive summary of the book, explains its important implications, and suggests some limitations. Part II takes issue with Stearns and Zywicki on one important ground - their failure to adequately consider public choice issues in an international context. A number of issues of international importance, such as trade, environmental and financial regulation, have become daily staples in policy debates. This Part describes how an understanding of public choice can offer insights into international antitrust.

A second semester of Admin Law? Thanks to Lawrence B. Solum, Legal Theory Blog, for the pointer. EMM

Agencies have to follow the rules: New Process Steel v. NLRB

The initial SCOTUSblog response to today's U.S. Supreme Court decision in New Process Steel v. National Labor Relations Board, No. 08-1457, is available at "Fall-out from today’s decision in New Process Steel". Opening paragraph:

This morning’s decision in New Process Steel v. National Labor Relations Board, No. 08-1457, took many observers by surprise.  The Court held that for a two-year period that ended only recently, the Board had been acting without statutory authority in adjudicating nearly six hundred cases because vacancies had left the Board without a quorum.  We will provide further coverage of the decision later, but for the moment, the immediate question that arises is what effect the decision has on those hundreds of decisions.

I need to read this one. Looks like we are back to the prime rule of administrative law - agencies have to follow the rules. EMM

Policy and practice: The revolving door

It is important to remember that administrative agencies are human institutions, not just regulations lithified in ink or electrons. Human administrators bring human problems and human needs and human wants. One of these human impositions on the intellectual detachment of administrative agencies is the "revolving door": Regulators leaving and going to work for the regulated industry and people from the regulated industry going to work for the regulating agency. This is part of "industry capture" of agencies, where an agency's mission drifts from regulating an industry in the public interest to representing the industry's interests viz. the government. Dan Ernst (Georgetown) has an interesting post on the subject on the Legal History Blog, "Senator Grassley, Professor Frankfurter and the Revolving Door at the SEC". It opens with:

I do not usually associate Senator Charles Grassley, from my native state of Iowa, with Supreme Court Justice Felix Frankfurter, but it happens that they have something in common: a mistrust of the revolving door at the Securities and Exchange Commission. Last month Senator Grassley filed an amendment to the financial regulation bill that would require former employees to wait two years before representing clients before their old agency. This week he exchanged letters with the SEC’s Inspector General about a recent door revolver. Seventy-five years ago, Justice Frankfurter expressed similar concerns.

Thanks to Prof. Ernst for the pointer. EMM

The Role of Administrative Agencies in the Obama Administration

Allen B. Roberts of EpsteinBeckerGreen recently published an article that explores the role of administrative agencies in interpreting and enforcing legislation under the current presidential administration.

The article, entitled "The Promise of Change:  Will Administrative Agencies Offer A Path That Bypasses Obstacles To Legislation?" can be found here.

KP

Theory: Rule of law v. state necessity

Evan J. Criddle (Syracuse), "Mending Holes in the Rule of (Administrative) Law", Northwestern University Law Review Legal Workshop, 14 June 2010. Introduction:

The past decade has witnessed a surge of interest in Carl Schmitt’s controversial assertion that the rule of law inevitably bends under the demands of state necessity during national emergencies.  According to Schmitt, legal norms cannot constrain sovereign discretion during emergencies because “the precise details of an emergency cannot be anticipated” in advance. The sovereign must therefore possess unfettered discretion to determine both “whether there is an extreme emergency” and “what must be done to eliminate it.”

Few legal scholars have embraced Schmitt’s theory of emergencies with the enthusiasm and sophistication of Adrian Vermeule, the John H. Watson, Jr. Professor of Law at Harvard Law School.  In an article published recently in the Harvard Law Review, Vermeule argues that American administrative law is fundamentally “Schmittian” in the sense that it permits federal agencies to operate outside the constraints of administrative procedure and meaningful judicial review during emergencies.3 Vermeule contends that the federal Administrative Procedure Act (APA) is replete with procedural exceptions, which generate “black holes”—zones where federal agencies are free to act outside the constraints of legal order.  In addition, he suggests that federal courts manipulate flexible legal standards to accord heightened deference to federal agencies during national crises, transforming standards such as “reasonableness” and “good cause” into “grey holes”—legal devices which preserve the façade, but not the reality, of the rule of law.  Far from criticizing these gaps in federal administrative law, Vermeule accepts black and grey holes as institutional inevitabilities, and dismisses proposals to extend the rule of law to all administrative action as a “hopeless fantasy.”

Vermeule makes a compelling case for his observation that statutory loopholes and anemic judicial review have diminished administrative law’s salience during national emergencies.  But his broader argument, that black holes and grey holes cannot be eradicated, is unpersuasive and deeply troubling.  In reality, Congress could eliminate the APA’s procedural loopholes without compromising agencies’ capacity to act during emergencies if it would simply discard the APA’s rule-based categorical exceptions in favor of a more nuanced, standard-based derogation regime.  Likewise, federal courts could easily eliminate grey holes by treating legal standards in administrative law as vehicles for promoting robust public justification of administrative action.  The primary obstacle to these reforms is not “institutional,” as Vermeule asserts, but rather cultural: too many legislators and judges view administrative law in static positivist terms as a means for allocating decision making authority among public institutions, rather than in dynamic relational terms as establishing a regime in which public officials must justify all exercises of administrative powers according to public-regarding factors.

To show how our administrative law might be reformed to promote a “culture of justification,” this essay advances a relational theory of the rule of law based on the principle that public officials and agencies serve as fiduciaries for the public.  Whereas Vermeule’s article explores the current limits of our administrative law, the relational theory suggests practical steps for refining our legal system to ground emergency administration more firmly in the rule of law.

EMM

Theory: Public participation in administration

Tina Nabatchi (Syracuse, Maxwell School of Citizenship and Public Affairs), "Addressing the Citizenship and Democratic Deficits: The Potential of Deliberative Democracy for Public Administration", 40 American Review of Public Administration 376 (2010). Abstract:

This article reviews and synthesizes diverse streams of literature to assess the potential of deliberative democracy for American public administration. It asserts that the field should refocus its attention on the role of citizens in the work of government to help address the pervasive citizenship and democratic deficits in the United States. American public administration has an obligation to address these deficits because (a) it is required to do so by democratic ethos, (b) it has contributed to the deficits with its widespread embrace of bureaucratic ethos, and (c) it must find ways to effectively engage citizens within modern network and collaborative governance structures. This article identifies deliberative democracy as one potential method to help fulfill these obligations and explains how deliberative processes may help address the deficit problems. The article concludes by identifying a preliminary research agenda for exploring the potential of deliberative democracy for public administration.

As a veteran of American public administration I am not convinced as to assertions (a) and (b), and as a lawyer I'm not sure (c) follows from either or both. I have not read the article. EMM

A mistake by the government in the client's favor usually will not create a vested right

From Larkin Hoffman Daly & Lindgren Ltd. (Minneapolis), "Supreme Court Rejects Claim for Vested Rights to Sign Built Under City Permit Issued in Error" by Julie N. Nagorski:

In the recent Halla Nursery decision, the Minnesota Supreme Court denied a landowner who expended substantial sums in reliance on a city building permit for the construction of a sign the vested right to complete and use that sign. The sign, as proposed to the city in the permit application, included moving and flashing components, while the city’s ordinance clearly prohibited moving and flashing signs. The decision does not appear to extend to violations of ambiguous ordinances and different rules for those laws may apply. Following this decision, however, a landowner takes a considerable risk if it relies on a city to ascertain, before it issues a permit, that the proposed project complies with all applicable ordinances: It may be prohibited from completing and using construction authorized by the permit even if it has already incurred large expenses. To avert this risk, the landowner should familiarize itself with all likely-applicable ordinances and ensure that its proposed construction will comply with at least all of the unambiguous ordinances.

Thanks to Lexology for the pointer. EMM

Theory: A Federal Inaction Commission

Glen Staszewski (Michigan State) has posted "The Federal Inaction Commission" on SSRN. Abstract:     

Administrative agencies can implement their delegated statutory authority too aggressively or not aggressively enough. When regulated entities are adversely affected by unduly aggressive agency action, they can routinely obtain judicial review of the legality of those decisions. Yet this important safeguard and other procedural protections are often unavailable to regulatory beneficiaries who are adversely affected by agency inaction. As a result, agencies have powerful incentives to favor the views of regulated entities over the views of regulatory beneficiaries during the administrative process. While several commentators have suggested that judicial review of non-enforcement decisions and other agency inaction should be more readily available to alleviate this asymmetry and advance other important objectives, such proposals arguably raise separation of powers concerns and other practical difficulties stemming from the limited resources of agencies and courts and questions regarding the judiciary’s competence to review decisions of this nature.

This Article proposes the establishment of a "Federal Inaction Commission" (FIC). This new, independent agency would be charged with investigating and reviewing the inaction of executive branch agencies and reporting its findings and recommendations to elected officials and the public. The FIC would provide many of the same benefits that would result from increasing the availability of judicial review of non-enforcement decisions and other regulatory inaction. At the same time, the FIC would be in a position to minimize the practical disadvantages that have been identified with judicial review of such decisions. Not only would the establishment of the FIC therefore provide a more workable solution to the problem of agency inaction than other commentators have offered, but the agency would also provide a political solution to what the staunchest defenders of the status quo have maintained is solely a "political" problem.

Interesting thought experiment. EMM

Jurisdiction questions

From Dean Patty Salkin's (Albany) Law of the Land blog, "CT Supreme Court Holds that Zoning Boards Have Authority to Hear Appeals Regarding Compliance with Stipulation Judgments":

[After a settlement structured as a stipulated judgment and a subsequent Zoning Board of Appeals decision that plaintiff's renovations failed to conform to that judgment,] [p]laintiff then started this action, claiming that the ZBA lacked the jurisdiction over [a neighbor, party to the stipulated judgment]’s appeal of the certificate granted by the enforcement officer.

The Court first concluded that the zoning board had jurisdiction since the officer who granted the certificate was an officer charged with enforcement of the law, the granting of the certificate was a decision as contemplated by the law, and [the neighbor]’s claim concerned an error. Therefore, the plain language of the statute was satisfied. The plaintiff argued that since the appeal regarded a stipulation and not zoning regulations, that the ZBA did not have jurisdiction over the appeal. The court rejected this argument finding that under the applicable statute, the ZBA is given broad authority over the actions of the enforcement officer, which the court concludes encompasses actions taken based on stipulation judgments.

The court also disagreed with the plaintiff’s assertion that the mention of Chapter 124 in General Statutes § 8-6(a)(1), which states “any bylaw, ordinance or regulation adopted under the provisions of [that] chapter,” limits jurisdiction. The court stated this reference was not used with regards to limit the jurisdiction of the ZBA, but to help define officials whose decisions are appealable to the ZBA.  The court noted that even if they did agree with the restrictive meaning given by the plaintiff, the outcome would be no different as stipulated judgments become part of and may alter zoning regulations to the specific property.

Also, based on the logic of a previous case ... the trial court did have concurrent jurisdiction with the ZBA, and not as the plaintiff asserted, that the trial court should have sole jurisdiction. ...

The plaintiff lastly contended that the ZBA should not have jurisdiction over the appeal, and the trial court should have sole jurisdiction, because the ZBA was party to the stipulation judgment and may be biased against the plaintiff. The court rejected this argument as it is common practice for an administrative decision to be reversed and then remanded back to the same administrative body for further proceedings.  Also it is presumed that administrative board members are not biased. Furthermore, if there is any abuse by the ZBA, the plaintiff could appeal to the courts to remedy the situation.

The jurisdiction of any agency is determined by statute and interpreted like any statute by the courts. Generally, courts are going to look at what is practical if no fundamental rights are involved. The five arguments for the agency's lack of jurisdiction in this case are all non-starters, especially the last. EMM

Insight from Fred Reed

One of my college buddies sent me this: "Fred On Everything: Commentator's Disease". It opens with:

When I read columnists or listen to talking heads on the lobotomy box, they strike me as delusional. What are these decapitated crania prattling about? From what morgue did they escape? What country are they from? Certainly not the America I grew up in.

I conclude that they suffer from Commentator’s Disease, which consists in the confluence of several disabilities, the first being high intelligence. ...

And later:

The tendency of the Beltway 99th [percentile of intelligence, income, education, etc.] to live in an imaginary world, of conservatives to think that everybody can be a Horatio Alger, of liberals to believe that inequality arises from discrimination, guarantees wretched policy. Those who can do almost anything need to recognize the existence of those who can do almost nothing.

Fred Reed points out that few of these inside-the-Beltway people are greedy or selfish or dishonest. Having worked in that world myself for ten years before fleeing to the West, I knew them first-hand. They have good intentions (as in, the road to hell is paved with). They are dedicated, and each comes to believe that her or his office/department/firm/organization is doing the most important work in Washington, that the mission of his or her team is absolutely critical for the survival and prosperity of the United States. This leads to competition for resources (budget, people, the boss's attention) that tends to drown out thought about policy and the impact of policy on people. And they can't all be right. They can't see the trees for the forest - and they can only see a small part of the forest at best. I assure you, from personal experience, that it is really, really easy to forget about ordinary Americans in that social environment.

One of the most important functions of lawyers in the United States is to provide the interface - the communications link - between individual Americans and their governments. We operationalize (translate into language they can understand and use) laws and regulations for our clients, we advocate for our clients with courts and agencies, and we explain (and often have to justify) the actions of those courts and agencies to our clients. This is particularly true of the administrative lawyer. 

But this is a two-way link. We have to be the voice of our clients, the people and collections of people governed by those laws and regulations. Our clients do not generally have the ability to explain their needs to those suffering from Fred's "commentator's disease'. We do. So we must speak for them. EMM

Read the fine print

Eric D. Foerg reviews a recent Indiana Supreme Court on Frost Brown Todd LLC's Construction Law News blog in "Sand and gravel company unwittingly surrenders its operation to public use":

... The case pertained to the effect of language in permit approvals for the digging of a channel from the Ohio River to a nearby lake so that the lake could be used for a sand and gravel operation. The [Indiana] Department of Natural Resources (the “DNR”) had imposed a permit condition dedicating waters to public use. Specifically, Nugent Sand was required to dedicate the pre-existing lake to general public use. The Indiana Supreme Court denied efforts to seek judicial relief from conditions imposed within the permit approvals.

In 1999, Nugent Sand leased 156.2 acres for use in its commercial barge operations. “The acreage contained a 50-acre man-made body of water, standing about 200 feet inland from the Ohio River.” Nugent Sand sought and acquired a permit from the Department of the Army, Corps of Engineers. Additionally, Nugent Sand obtained certificates of regulatory approval from the DNR “because the construction would take place in a floodway and involved construction of an access channel.” “Among the conditions contained in [the] DNR’s granted certificates were provisions mandated by a section of the Indiana Code.” The code provision required any water created to be for “general public use.”

Following the approvals, Nugent Sand excavated a channel through the Ohio River’s bank to the man-made lake to accommodate a commercial barge operation. It also built a dock in the lake for unloading barges.

Around 2005, boaters began using the lake, after entering through the excavated channel. Nugent Sand attempted to enforce “No Trespassing” warnings. When Nugent Sand complained about boaters interfering with its business operations, the DNR stated that the waters were public and provided similar statements to citizens who called to inquire about the status of the lake. Nugent Sand complained that the DNR’s diffusion of its position led to more boaters.

Nugent Sand and the landowners (from whom Nugent Sand leased the land) filed a complaint against DNR for declaratory and injunctive relief. Nugent Sand moved for summary judgment, effectively arguing that the lake and the channel were private property from which they could exclude the public and that any attempt to force them to dedicate the property for public use without compensation would be an unconstitutional taking. The DNR responded that Nugent Sand “exchanged providing public access to the lake and channel as a condition for digging the channel, and the public gained access to the property by virtue of Indiana statute as well as various common law principals.” ...

Before the Indiana Supreme Court, the DNR maintained that Nugent Sand should have undertaken its administrative remedies instead of filing the present action. Nugent Sand maintained that it had no notice that it might need to invoke administrative procedures, since the terms imposed by the DNR were not set forth in the approvals. Nugent Sand also emphasized that it only became clear after the appeal period expired that the DNR was going to declare all additional waters created by the project to be for public use. 

The Court concluded that Nugent Sand had an administrative remedy. In fact, each permit contained information regarding how to appeal. “DNR gave plain notice.” “[T]he available process was ignored a decade ago.”

The case is significant because it shows the dangers of failing to appreciate the details of the construction approval process. Here, a sand and gravel company wasted much time and money to unknowingly benefit the public. By failing to grasp the implications of the approval documents, the sand and gravel company wrecked its would-be operation and harmed the landowners from whom it leased the land.

(Citations omitted.) A hard way to learn this lesson. Public documents such as approvals and contracts often incorporate statutory and regulatory provisions by reference. Sometimes the provisions are incorporated without reference in the document in hand.  The administrative lawyer handling the matter better read the entire document and know what laws and regulations control the transaction.  A statute or regulation property promulgated is notice. The agency may be nice and give you convenient references in the document itself. Or it may not. In any event, it is the regulated entity's obligation to know the rules of the game.

Thanks to Lexology for the pointer. EMM

Regulation of commercial speech

The major stem of administrative law grows out of the 5th and 14th Amendments to the U.S. Constitution. But other sections of the Constitution are of interest as well, such as the Commerce Clause. Regulation of commercial speech smacks directly into the First Amendment. On his Drug and Device Law blog, Jim Beck (Dechert LLP, Philadelphia) reviews a recent D.D.C. case in "A Victory In The Fight Against FDA Paternalism". Whatever you think of the political content of his title (remember, Mr. Beck is unabashedly pro-defense in the drug and medical device industries), this post and the case reviewed are great summaries of the rules imposed on agencies that regulate commercial speech. I submit that municipal sign ordinances - even some homeowner association rules - face the same judicial scrutiny. The case is Alliance for Natural Health US v. Sebelius, __ F. Supp. 2d __, 2010 WL 2110071 (D.D.C. May 27, 2010). From near the end of the post:

First Amendment Analysis: Finally, we would be remiss if we didn’t mention that this case collects some good soundbites for anyone fighting FDA attempts to chill commercial speech. For example:

“The Supreme Court has ‘rejected the highly paternalistic view that government has complete power to suppress or regulate commercial speech.’” Id. at *9 (quoting Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 562 (1980)).

Or:

“‘[T]he States may not place an absolute prohibition on certain types of misleading information…if the information also may be presented in a way that is not deceptive.’” Alliance for Natural Health US, 2010 WL 2110071 at *9 (quoting In re R.M.J., 455 U.S. 191, 203 (1982)).

Or:

“‘The First Amendment does not allow the FDA to simply assert that [a plaintiff’s c]laim is misleading in order to supplant its burden to demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree.’” Alliance for Natural Health US, 2010 WL 211071 at *9 (quoting Whitaker v. Thompson, 248 F. Supp. 2d 1, 9 (D.D.C. 2002)).

And how about this troika, which seems pretty useful in the ongoing off-label promotion First Amendment battle:

“[D]isclaimers are ‘constitutionally preferable to outright suppression.’”
“‘[The preferred remedy is more disclosure, rather than less.’”
“‘[W]hen government chooses a policy of suppression over disclosure – at least where there is no showing that disclosure would not suffice to cure misleadingness – the government disregards a far less restrictive means.’”

Alliance for Natural Health US, 2010 WL 2110071 at *10 (quoting Pearson v. Shalala, 164 F.3d 650, 657-58 (D.C. Cir. 1999)).

EMM

Courage is part of the job description

We don't usually think of advocacy before legislative hearings as part of administrative law, but it can be something an administrative lawyer faces. And sometimes it is the ethical obligation of the administrative lawyer to stand up to legislative bullies.  On this day in 1954, attorney Joseph Welch stood up to Wisconsin Senator Joseph McCarthy and publicly denounced the Senator's witch-hunt.

Sometimes you have to speak truth to power. It comes with the job.

Thanks to the Law & Humanities Blog for the pointer. EMM

Policy: Evaluating regulatory effectiveness

The Penn Program on Regulation's RegBlog has a good discussion of the questions we need to ask when evaluating the effectiveness of a regulatory program in "Is the Mine Safety and Health Administration Up to the Task?"  This is a fairly straightforward area of safety regulation - by "straightforward" I mean that very few people will consider this beyond the realm of government action.  But we still have to compare the effectiveness of administrative action with private litigation as a deterrent to misbehavior. The last paragraph of the post says:

When a regulatory agency’s fines are not sufficient to deter behavior, the law may sometimes provide for private rights of action, which could allow employees to sue for unsafe work conditions.  However, the only private right of action for miners apparently only protects from discrimination those miners who specifically ask for inspections. Thus, although there are private wrongful death suits against Massey Energy, these will be filed in state court, such as West Virginia, where questions have been raised about whether Massey Energy has close ties to state courts. Massey’s entry into bankruptcy also raises questions about whether private rights of action can actually produce much future deterrence.

This is real world, not airy-fairy theory. EMM

Regulatory compliance resources

As we place more emphasis on practice concerns in the teaching of administrative law, the questions arises as to where lawyers can get the information they need to monitor regulatory compliance. I commend to you the FreePint May 2010 report Regulatory Compliance Resources for a short introduction (only 33 pages, of which 16 have information of substance, with lots of graphics). Its introduction:

Like death and taxes, regulation is not something that can be sidestepped. There are no shortcuts to regulatory compliance; there is no ‘good enough.’ Organisations must have access to the data they need to help them maintain compliance, and they must have them in a format that enable work to flow smoothly, to keep high-value employees moving quickly and effectively through reams of information.

As you can guess from the spelling of "organisations", this is a UK product with a strong UK/EU focus. However, it has points of interest to American practitioners and professors as well. For example, when they asked respondents which geographic regions mattered to them when they considered regulatory compliance, China was the fourth most important region (after UK, EU, and US), identified by 58% of respondents. Other aspects of this survey were the status of compliance staff and budgets, the adequacy of information resources for various purposes, and what resources were used.

This report is available for download as a .pdf file at http://www.freepint.com/. EMM

Crowdsourcing regulations

An interesting opportunity from Cornell's Regulation Room:

Last week, Secretary of Transportation Ray LaHood announced a rulemaking that would refine and extend the Airline Passenger Bill of Rights. Some of the changes DOT is considering may increase compensation for passengers involuntarily bumped from flights, allow passengers to make and cancel reservations within 24 hours without penalty, require full and prominently displayed disclosure of baggage fees as well as refunds and expense reimbursement when bags are not delivered on time, require fair-price advertising, prohibit price increases after a ticket is purchased, and mandate timely notice of flight status changes. Secretary LaHood encouraged all citizens to help shape these new rules by visiting the Regulation Room.

Regulation Room (www.regulationroom.org) is an online public participation website where individuals and groups can learn about and discuss proposed new federal regulations, working together to provide effective feedback to agency decision-makers. As a flagship program of the Department of Transportation's open government initiative, Regulation Room is designed and operated by the Cornell e-Rulemaking Initiative (CeRI) to discover how Web 2.0 technologies can help people understand and meaningfully participate in government policymaking. The site is easy to use, and the issues are easy to understand.

We urge you to share this information with your constituents and encourage them to comment on this policy at www.regulationroom.org. The more input we receive, the better the chance that this rule will reflect the concerns of all stakeholders. For more information, visit www.regulationroom.org or email us at communications@lawschool.cornell.edu

EMM

Lessons in interpreting and applying a statute

A New Hampshire case described by Dean Patty Salkin (Albany) in her Law of the Land blog has three interesting admin law lessons. "Owner Continued Use of Nonconforming Asphalt Plant Even Though No Asphalt Was Produced During Relevant Time Period":

...[A]butting property owners] of ... an asphalt plant, appeal[ed] from a decision of the Superior Court that reversed a decision of the zoning board which held that Pike [the owner of the plant] discontinued its nonconforming use of the asphalt plant and thus could not re-establish such use. ...

[First rule of statutory interpretation.] Addressing the appellants’ first claim, that the “spirit of the ordinance” should have been considered, the Supreme Court affirmed the superior court’s ruling that the ZBA [Zoning Board of Appeals] should not have begun its analysis with this consideration. If an ordinance is clear and unambiguous, the language should be looked at to determine legislative intent. This ordinance was not ambiguous, as it is clearly stated that once the nonconforming use has ceased for one year, it shall not be re-established. The intent is clear in the language of the ordinance, and no intent or “spirit” is required to be ascertained. The considerations to be made are, in this case, solely whether there was discontinuance and if so, the duration.

[Definition of a term in a statute.] The court then addressed whether the ZBA’s definition of “use” was correct. The ZBA defined “use” here as the production of asphalt. Conversely, Pike argued, and the superior court agreed, that the definition of “use” should have been a broader than mere production, including other business operations such as employee training and upgrading the facility. The Supreme Court affirmed the superior court ruling, as there are activities that the respondent could engage in, other than the production of asphalt, that would constitute a use of the plant, such as keeping it ready for production. ...

[Inferring requirements that are not in the statute.] Lastly, the Supreme Court considered the appellants’ claim that the superior court erred in ruling that the ZBA should have considered Pike’s intentions to abandon the nonconforming use. The Supreme Court reversed the superior court’s ruling and held that a determination of such intent was not required under this ordinance. When abandonment is defined in an ordinance, and no mention is made of a consideration of intent, then such a consideration is not required. The present ordinance states that all that is necessary is that the nonconforming use [] cease[s] for “any reason.” This defines what is required and negates any element of intent to discontinue.

The first and third lessons of statutory interpretation and construction are straightforward, but the second lesson is probably worth spending some time on. This is where advocacy can make a big difference. EMM