Administrative Law Prof Blog

Theory: Thinking about the future

It may be unusual in modern America, but sometimes it is useful to think ahead, to consider hypothetical futures that might just happen. I commend to you the blog Law and the Multiverse: Superheroes, supervillains, and the law. You can read reviews of this blog on the New York Times web site and on Above the Law. I enjoy it, and as Ilya Somin (George Mason) points out in the NYT article:

“Over the next several decades we’re going to see technology and powers emerge that today only exist in science fiction and comic books,” he said, citing Arthur C. Clarke’s famous saying that “any sufficiently advanced technology is indistinguishable from magic.”

“It may be reasonable to ask,” Professor Somin said, “how should the law treat those kinds of issues when they emerge?”

And how does this blog help us teach administrative law? Today's post is "'Gadget' Superheroes and Federal Arms Control Laws":

At least two major superheroes, Batman and Ironman, are the alter egos of billionaire “industrialists,” Bruce Wayne and Tony Stark respectively. Both are the at least titular heads of their respective corporate empires, Wayne Enterprises and Stark Industries. Both are major defense contractors, i.e. arms merchants. Wayne Enterprises is generally described as a multi-industry conglomerate with significant revenues in a number of unrelated businesses, while Stark Industries is primarily in the arms business, but both appear to derive a significant portion of their revenues from selling weaponry of all sorts.

... [D]o our various heroes break any laws when they leave the country or provide this equipment to others? ...

... Specifically, the International Traffic in Arms Regulations (ITAR) 22 CFR parts 120-130, specifically the United States Munitions List, codified at 22 CFR part 121 (amendments). This is where the federal government lays out in great detail the restrictions placed on the export of weapons and related technologies. So, for example, it is illegal to export a gas turbine specifically designed for use in a ground vehicle. The regulation probably has in mind things like the M1 Abrams tank, but hey, isn’t the Batmobile (at least sometimes) powered by a gas turbine?

A good way to discuss how new stuff gets treated by the in-place regulatory system. EMM

 

Statutory interpretation: Murphy on Foy on honesty in judicial reasoning

(Considering that statutory and regulatory interpretation is really, really important in administrative law and we don't have a statutory interpretation blog any more, you may see a few more general statutory interpretation posts on this blog.)

On the University of Miami's Jotwell blog, Richard Murphy (Texas Tech) reviews a new article by H. Miles Foy (Wake Forest), "On Judicial Discretion in Statutory Interpretation", in "The Truth Might Set Your Statutory Interpretation Free". The opening of Prof. Murphy's review:

There is something silly about Supreme Court decisions in which five justices explain that the conventional tools of statutory interpretation—e.g., legislative intent, objective textual meaning, and judicial rules for discerning and applying them—plainly indicate that a statute means A but the other four justices deploy the same tools to explain that the statute plainly means B.  After all, if the relevant meaning were all that clear, wouldn’t all nine of the extraordinarily capable legal minds on the Court come to quick agreement?  And isn’t their disagreement strong evidence that the statutory question has no pre-existing, determinate legal answer?   One might expect that under such circumstances, the rules of reasoned legal discourse would require justices to make remarks like, “Wow.  My dissenting colleagues’ arguments are really very good—they almost persuaded me—and I’m no pushover. But, on balance, I still think it is a better idea to choose interpretation A instead of B.”  Instead, the more usual practice is for both sides to insist that the other is just plain wrong.

The abstract of Prof. Foy's article:

In most cases it is realistic to suppose that statutes have a precise, judicially determinable meaning and that the courts are in a position to discover and declare that meaning through a process of legal reasoning. Yet there are cases in which this concept is simply unworkable. Not every question of statutory interpretation can be resolved persuasively through a process of legal reasoning, and to pretend otherwise is to perpetuate a fiction. Some legal fictions are useful; this one is not. It degrades, confuses, and corrupts the interpretive process.

Conventional interpretation is likely to fail in cases such as the ones I describe in this essay. Sometimes a conscientious judge will examine the relevant statute and conclude that more than one interpretation is possible and that conventional considerations do not favor a particular interpretive choice. In such a case, the judge should be free to declare that the statute creates a framework for choice, and the judge should be allowed to exercise prudent judgment within the statutory framework by preferring one permissible interpretation or another, while explaining candidly the reasons for the preference. In such a case the interpretive process is essentially a discretionary process, and it should be theorized as such.

Don't judges understand how silly they look when prevailing and dissenting opinions use the "plain meaning rule" to come up with diametrically opposed meanings? Ditto in circuit splits? EMM

Interesting teaching case

On ZIEFBRIEF from the University of San Francisco's Dorraine Zief Law Library, "Ban on Using 'Library' in Business Name".

The NY Times' Diner's Journal reports on an interesting New York law that prohibits including the words "library, school, academy, institute," and other words in a business name, unless the state [Board of Regents] consents to the proposed business name.  A new business owner wanted to name his store "The Chocolate Library," but the state's Education Department nixed the proposal because it believed the proposed name was misleading.  I'm trying to imagine how the general public could be misled by a store named "The Chocolate Library."  Would consumers imagine that they would walk into a library constructed entirely of chocolate, sort of like Homer Simpson's "Land of Chocolate" daydream?  Would they perhaps imagine that all of the chocolate in the store could be borrowed rather than purchased?  Or that the chocolate would be organized according to the Dewey Decimal System?  It seems like a decision worth reconsidering.

Are there legal (vice policy) challenges to this decision available? It's an administrative law question - a decision by the executive branch delegated by the legislature. Is a hearing required? Expert testimony?  There is a federal parallel: New schools may not use the .edu top level domain (TLD) until they receive at least provisional accreditation from the appropriate accrediting body. (My business cards still show my email address as "@phoenixlaw.org".) However, the federal restriction is not descretionary. This could be an interesting and entertaining discussion problem. EMM

New in Zimmerman's Research Guide

"State Government Agencies" on LEXISNEXIS(R) INFOPRO - Zimmerman's Research Guide. EMM

Faceted Searching Now Available in HeinOnline Federal Register Library

See the HeinOnline Blog, "HeinOnline Enhancement: Faceted Searching Now Available in Federal Register Library". This will speed up our searching. EMM

How administrative law and statutory interpretation overlap a lot

Much of administrative law turns on interpreting statutes and regulations. Actually, much of all law turns on interpreting statutes and regulations, but as this is the Administrative Law Prof Blog, let's talk about administrative law. More of administrative law turns on interpreting statutes and regulations than other practice areas. Lawrence Friedman (Barnes/Richardson, Chicago) reviews a decision by the Court of Appeals for the Federal Circuit on his Customs Law blog in "On the Horizon". The underlying claim involves customs duties that the government charges on repairs done to American ships overseas. The case turns on the meaning of the word "repair". The ship owner asserted that the work done on the ship was a "modification" - which does not incur a duty - rather than a dutiable "repair".

... I know this kind of semantic distinction makes non-lawyers crazy, but there it is. That is how the law is written and that is what Customs and the Court must apply.

...The [repair/modification] improved the speed and ease of loading the ship and improved safety during the loading operation.

The CIT [Court of International Trade, the trial court in this case] found no evidence that the container guides were in need of repair. Consequently, the CIT held the work to be a non-dutiable modification. ...

On appeal, the United States argued that the CIT took too narrow a view of "repair" as meaning restoring a feature to good working condition after sustaining damage. Rather, the government suggests that repairs include systematic improvements to the operation of a vessel.

The Federal Circuit agreed with the CIT's more narrow definition of "repair" in this context. ...

Might be a good starting case for statutory interpretation in the the administrative law context. EMM

Interesting story to follow

This could be fun to follow. In May of this year, Arizona passed House Bill 2246 which limits local regulation of "consumer fireworks". Here is the meat of the law, with new language underlined and deleted language stricken through.

36-1606. Consumer fireworks regulation; state preemption; further regulation of fireworks by local jurisdiction

The sale and use of permissible consumer fireworks are of statewide concern. The regulation of permissible consumer fireworks pursuant to this article and their use is not subject to further regulation by a governing body, except that an incorporated city or town may regulate the use of permissible consumer fireworks within its corporate limits and a county may regulate the use of permissible consumer fireworks within the unincorporated areas of the county during times when there is a reasonable risk of wildfires in the immediate county. This article shall not be construed to does not prohibit the imposition by municipal ordinance of further regulations and prohibitions upon on the sale, use and possession of fireworks within an incorporated city or town other than permissible consumer fireworks by a governing body. No such city or town A governing body shall not permit or authorize the sale, use or possession of any fireworks in violation of this article.

The "consumer fireworks" are pretty mild, but still a potential fire hazard. The City of Phoenix (ten times larger than the next largest city in the state, Tucson) is trying to negotiate regulations around the new statute, with less than complete success. See "Fireworks company balking at regulations sought by Phoenix". Another city's response is described in "Fireworks law still on Kingman books". Jurisdictions are approaching the problem differently.

Like I said above, this could be fun to follow. Legal action and unintended consequences are probably inevitable. EMM

New administrative law articles

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

• Kallen, Cid R. Comment. Local procedure contradicting legislative intent: where governmental processes fail to comply with requirements set forth by applicable statutes. 2 Phoenix L. Rev. 341-359 (2009). [H]|[L]|[W]
  
  
• Slocum, Brian G. The importance of being ambiguous: substantive canons, stare decisis, and the central role of ambiguity determinations in the administrative state. 69 Md. L. Rev. 791-848 (2010). [H]|[L]|[W]

A bit of bragging: Cid Kallen was one of my students. EMM

Policy: Zaring on why the Treasury Department is different

New on SSRN: "Administration by Treasury" by David Zaring (Penn - Wharton School). Abstract:

Although the Administrative Procedure Act (APA) in theory regulates government policymaking, the agency that is both among the oldest and, as the financial crisis has revealed, one of the most important, does not play by its rules. The Treasury Department is rarely sued for its administrative procedure, makes fewer rules than do agencies that follow the APA more closely, and acts as if it is generally less bound by the nuances of process than do its peers.

In the Article, I examine the alternative administrative procedure that applies to the Treasury Department and illustrate the ways in which it does things differently. In some ways, the department’s absence from the usual suspects of administrative oversight, including the Office of Management and Budget, the D.C. Circuit, and the Federal Register, suggest that Treasury is essentially acting as an unsupervised agency; many observers have concluded that the Treasury Department’s response to the financial crisis amounted to an abandonment of the usual safeguards we expect in the modern administrative state. But a closer examination indicates that Treasury simply operates under a different model, one informed by its form, its remit, and its tasks – but not, at least not much, by ordinary administrative procedure. Its constraints come more from Congress, from internal controls, and from the large, but understudied, private bar that interprets what it is doing, than from notice, comment, rulemaking, and litigation.

EMM

Policy: Estoppels against governments

Greg Weeks (New South Wales) has published "Estoppel and Public Authorities: Examining the Case for an Equitable Remedy" on bepress. This paper is forthcoming in the Journal of Equity. Abstract:

Estoppels can be raised against public authorities but cannot be enforced where that would require the public authority to act ultra vires or fetter a statutory discretion. There have been attempts to create a public law doctrine of substantive legitimate expectations to address this remedial gap; indeed, such a doctrine is now well-established in the UK. However, it is not appropriate to the constitutional setting in Australia. This need not mean that no remedy is available where an individual relies to his or her detriment on a misrepresentation made by a public authority. This article argues that equity retains a capacity to provide compensation to remedy an estoppel, even where parties are not in a fiduciary relationship and in the absence of fraud.

The lay person's anger at misrepresentations by government agencies, especially at the local level, is IMHO a problem waiting to detonate. Whether intentional, negligent, or just mistaken, the absence of effective remedies when reasonable expectations are frustrated pisses people off. I suspect, however, that those most hurt by government misrepresentations (e.g., real estate developers, government contractors) are also among the biggest taxpayers, and are therefore opposed to increasing potential unpredictable government liability. A subject worth studying. This article is from across the big pond, but provides comparative insight. EMM

 

 

Theory: Harrison on happiness

New on SSRN: "Regulation, Deregulation, and Happiness" by Jeffrey Lynch Harrison (Florida). Abstract:

Happiness, in general, is in many respects the topic du jour. A great deal of theoretical and empirical work has been devoted to dissecting it. Studies of happiness have crossed over to law, and the result is an addition to the long list of the list of “law and” interdisciplinary areas. In fact, in 2010, Eric Posner and Matthew Alder presented an excellent book of readings the title of which is Law and Happiness. Peter Henry Huang has written the definitive survey of law and happiness literature. My own writing has reflected on the promise of happiness research and the difficulties of implementing its teachings. Most of the interdisciplinary work evaluates the potential impact of happiness on policy or programs. For example, in response to evidence that hosting large scale sports events like the Olympics or the Super Bowl may not be unqualified economic successes, work is now being conducted to assess the impact of those events on happiness. The teachings of happiness scholarship has yet to be applied to the traditional rationales for business regulation and the issue of how regulation could be altered, if at all, by considerations of happiness. This is the topic to which most of what follows is devoted.

EMM

Legislative versus adjudicative actions

On her Law of the Land blog, Patty Salkin (Albany) reviews a case on the denial of a rezoning application in "Maryland Court of Appeals Explains Differences Between Legislative and Adjudicative Functions of County Council Reaching Different Conclusions on Two Difference Applications":

Recognizing from previous holdings that a single decision-making process can require both legislative and adjudicative roles for the hearing body, the Court found that the Council relied primarily upon legislative fact-finding in making its decision on the Miles Point property, and even though it specifically affected the property, it was based on general grounds and not specifically rooted in the unique characteristics of that property.  Since it was not an adjudicatory action under the Limiting Clause of the Express Powers Act, the County could not confer appellate jurisdiction to the Board of Appeals over the Council’s decision not to reclassify the property for Plan purposes. ...

Here the Court considered both administrative mandamus and common law mandamus as potential remedies to Shore Land’s case, and found the proper vehicle for review of the Council’s action was to invoke the original jurisdiction of the Circuit Court.  The Council’s findings noted that the reclassification of the Shore Lands property would be inconsistent with the State Smart Growth Law, and it would not provide for the orderly expansion and extension of water and sewer service consistent with both County and Town comprehensive land use plans.  Administrative mandamus would not lie because these findings of fact did not focus on unique characteristics of the property and were consonant with legislative, and not adjudicatory action.  Common law mandamus would not lie either because the Council, in voting on resolutions at issue, was exercising its discretion acting in a legislative capacity, and not a ministerial one.  ...

For the backstory, see the Law of the Land post. EMM

New administrative law articles

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

• Cheng, Eric B. Note. Alternatives to district court patent litigation: reform by enhancing the existing administrative options. 83 S. Cal. L. Rev. 1135-1176 (2010). [H]|[L]|[W]
  
  
• Custos, Dominique and John Reitz. Public-private partnerships. 58 Am. J. Comp. L. 555- 584 (2010). [H]|[L]|[W]
  
  
• Melamed, Matthew S. A theoretical justification for special solicitude: states and the administrative state. 8 Cardozo Pub. L. Pol'y & Ethics J. 577-608 (2010). [H]|[L]|[W]

EMM

Policy: Undoing the administrative state - David Zaring on the REINS Act

David Zaring (Wharton School, Penn) has posted "Would The REINS Act Do Anything?" on the Conglomerate blog:

The next two years would seem to offer gridlock in Congress, which tends to turn a President's thoughts abroad, to foreign policy, and more interestingly for our readers, to agency rules, which don't require Congressional authority.  Perhaps unsurprisingly, then, word comes that the GOP wants to end the power of agencies to pass major ($100 million or more) rules.  I'm not sure such a statute would pass, but I think that it's both constitutional and probably quite a bad idea.

Geoff Davis (R-KY) has introduced the new statute, the Regulations from the Executive In Need of Scrutiny (REINS) Act, that would require Congress to approve all major rules passed by agencies that aren't fighting a war, being the Fed, or implementing a trade deal. ...

So people are at least talking about this thing, which essentially reverses a presumption that already exists by statute.  Now, major rules have to be presented to Congress before enactment, and if it doesn't do anything, they are enacted.  This would force agencies to get Congressional approval before implementing any big deal regulations. ...

And so the real problem with the REINS Act is that it essentially undoes the administrative state.  Congress would have to pass nuclear reactor rules as statutes, ditto clean air regs (and amending the Clean Air Act has been legislatively impossible, so it is easy to imagine that it would be very hard to do this), presumably the SEC's proxy access rules, and so on.  Agencies would become, in essence, a Congressional Research Service, and the legislature would be forced to make decisions about what kind of nursing home facility reimbursements should be permitted on a region by region basis, rather than delegating that decision to experts.  Which was the whole point of creating institutions like the SEC and EPA in the first place.

But we'll see if this is just saber rattling or an effort to really change administrative law.

EMM

Again, agencies have to follow their own rules

The New York Public Personnel Law blog gives us another example of an agency failing to follow its own rules in "An administrative agency must follow the rules and regulations applicable to it in making its final administrative decision":

The [New York City] Department of Education (DOE) rejected applications for certification as New York City school bus drivers or bus escorts filed by a number of individuals on the basis of “criminal convictions that purportedly rendered them unsuitable to perform the duties associated with the transportation of school age children.”

While Supreme Court dismissed the petitions challenging this action, the Appellate Division reinstated the petitions with respect to DOE and remitted the matter to DOE for further proceedings.

Although the applicants were all denied certification on the basis of criminal convictions, the Appellate Division noted that the New York City Chancellor's Regulation C-105 provides that "If, prior to the conclusion of any background investigation, information of a derogatory nature is obtained which may result in denying the application for license, certification or employment, an applicant will be given an opportunity to review such information with the [Office of Personnel Investigation] and to include in the investigatory file, any written statements or documents which refute or explain such information."

In this instance, said the court, DOE did not provide the applicants with such an opportunity prior to making its determinations.

Conceding DOE’s concerns and “the need to protect the safety of children to be transported,” the Appellate Division said that DOE is bound by its own rules and regulations, including its procedural rules. Here the applicants were not given an opportunity to review the information that DOE relied upon in making its determination prior to its making its decision.

Pu-leeze! Change the rules or follow them. EMM

Policy: Inspectors General - proposal to expand powers

From WilmerHale (Wilmer Cutler Pickering Hale and Dorr LLP, Boston), "Oversight Committee Considers New Subpoena Power for Inspectors General—More Burdens for Business?"

Over Thanksgiving weekend, The New York Times profiled the incoming Chairman of the House Committee on Oversight and Government Reform, Rep. Darrell Issa (R-CA), and his ambitious oversight agenda for the new Congress.

One item that received significant attention is potential legislation Rep. Issa may co-sponsor with Democrats in the next Congress to grant new testimonial subpoena power to dozens of federal Inspectors General. Under current law, most non-federal entities and former federal employees may be subpoenaed by an Inspector General for documents and records, but not for witness testimony ...

The legislation that Rep. Issa co-sponsored this Congress, H.R. 5815, amends the Inspector General Act to provide the more than 70 statutory Inspectors General with the authority to compel the attendance and testimony of representatives of private sector companies by subpoena. Interestingly, the authority to compel testimony by subpoena under H.R. 5815 expressly excludes current federal employees. A subpoena issued by an Inspector General under the bill would require "reasonable notice" to be provided to the individual or entity being subpoenaed. But "reasonable notice" is not defined in the bill, nor does the bill require an Inspector General to attempt to obtain testimony by other means before issuing a subpoena. ...

[See the WilmerHale post for links.] Some of you may be aware that I have a "thing" about federal Inspectors General. Originally created to police the integrity of their respective agencies, they have evolved in too many cases into the agencies' police forces (in at least one case, "storm troopers" is a better description) enforcing agency regulations against private regulated entities. I have two difficulties with this evolution.

First, internal auditing and internal affairs investigations are boring, invisible, and piss off the people within the agency. Outside investigations are exciting, glamorous, bring in cash from fines, and make the Secretary look like a hero. However, that's what we pay the agency itself to do. But the normal enforcement officers of an agency don't carry badges or guns. Law enforcement powers make enforcement operations easier and have a high "cool" component. Over time, the focus of the Inspectors General has shifted too often from inside to outside the agency and the internal audit and internal affairs functions have faded.

My second objection, sociological, arises from my own observations and review of reports of Inspector General actions. Too many badge-and-gun carrying investigators in the Offices of the Inspectors General are FBI or ATF wannabes who couldn't get hired by these organizations. Too often, the reasons why they were not hired become apparent: They lack the intelligence, discipline, knowledge, or soundness of judgment to serve as law enforcement officers at the federal level. I know this sounds insulting, and there are many IG investigators who are fully competent. But too many are rolling around the gun deck unrestrained. And their agencies like them like that. EMM

Theory: Brownsword on regulatory values

Roger Brownsword (Law Faculty, King's College, London) has posted "Regulatory Cosmopolitanism: Clubs, Commons, and Questions of Coherence" on SSRN. Abstract:

The purpose of this TILT [Tilburg Institute for Law, Technology, and Society] Working Paper is to elaborate the idea of regulatory cosmopolitanism and to defend its coherence against three particular sceptical challenges.

In the context of global governance, regulatory cosmopolitanism expresses two requirements: first, that regulators should always act in accordance with fundamental or universal values; and, secondly, that the regulatory scheme (and, concomitantly, regulatory action) should leave an appropriate margin for legitimate local difference or the necessary room for legitimate local exception.

Against the cosmopolitan project while some sceptics might argue that the organising idea of fundamental values is a nonsense, others might object that, even if we assume such values, there is no coherent line to be drawn between those interpretations or applications that are legitimate and those that are illegitimate; and, irrespective of such philosophical objections, other sceptics will contend that the implicit mapping of regulatory relations that underlies the cosmopolitan ideal simply does not cohere with either the actuality of global governance or an increasingly virtual regulatory space.

Having distinguished full-scale cosmopolitan projects from more modest “club” versions (the former being the target for the sceptics), the paper sets out to defend the coherence of the regulatory cosmopolitan project. At the core of the defence against the first two sceptical challenges is the idea (originating with Alan Gewirth) that agents cannot rationally deny their rights and responsibilities in relation to the generic conditions of agency - and, in my elaboration of the argument, their rights and responsibilities with regard to the protection of the agency commons. Although there are many ways in which communities of rights may articulate these founding principles of generic rights and responsibilities (and, to this extent, there is room for legitimate difference between such communities), this is not an open form of pluralism; it allows for some pluralism but relative always to the governing fundamental values. As for the third sceptical objection, it is conceded both that global governance no longer maps in a tidy way and that much interactive and transactional activity now takes place in cyberspace. Nevertheless, what this signifies is not that regulatory cosmopolitanism is an incoherent aspiration, rather that its practical realisation is challenging - but then that is nothing new.

If the sceptics are right, it has to be conceded that regulatory cosmopolitanism is not the way to get to grips with global governance. However, this paper argues that the sceptics are wrong; that there is nothing incoherent in the idea of regulatory cosmopolitanism; and that, although rising to the challenge will be difficult, this is the right focus for global governance.

EMM

Statutory interpretation: Birk on public choice textualism

Daniel D. Birk, a 2010 graduate of Northwestern University School of Law, offers us a taste of his note, Jones v. Harris Associates L.P. and the Limits of Public Choice Textualism, 104 NW. U. L. REV. (forthcoming 2010), on The Legal Workshop. Opening, outline, and closing:

Judges Frank Easterbrook and Richard Posner recently clashed over the economics of the mutual fund industry in Jones v. Harris Associates L.P., a case challenging the fees paid to a fund’s investment adviser. The opinions also delineate Easterbrook’s and Posner’s differing philosophies of statutory interpretation and reveal the strengths and limits of Easterbrook’s textualism.

...

I. Conflicting Theories on Statutory Interpretation

...

II. Judge Easterbrook’s Theory Applied: Jones v. Harris Associates L.P.

...

III. Critique: Theory and Practice in Jones

...

IV. The Limits of Public Choice Theory

...

Conclusion

Public choice theory can provide valuable insights into the process of statutory interpretation.  But the notion that laws are products of compromises between competing interest groups does not mean that one may utterly abandon the search for meaning in a statute or that one should conclude that the purpose of the legislature is not an important consideration in interpretation.  Public choice theory can tell us where to draw lines, but it cannot tell us what to do inside those lines.

We may never know what song the Sirens sang or the true plot of The Turn of the Screw.  But we can, by applying standard methods of interpretation, be reasonably certain that characters played by Paul Newman and Robert Redford are shot to death by the Bolivian cavalry at the end of Butch Cassidy and the Sundance Kid.  Even if we cannot see it.

EMM