Administrative Law Prof Blog

If you are in DC on Friday

The Catholic University Law Review invites you to attend its 2011 Symposium, "A Battle for Supremacy: The Supreme Court's Regulatory Preemption Jurisprudence."  This event will be held on Friday, February 25, 2011, at 1:30 pm at the Washington office of K&L Gates, LLP.  Professor Amanda Cohen Leiter, Associate Professor, The Catholic University of America, Columbus School of Law, will moderate the panel discussion.

The Supreme Court has recently undertaken an examination of the doctrine of regulatory preemption. This year's Catholic University Law Review Symposium will examine these Supreme Court cases and the regulatory preemption doctrine generally. An expert panel will begin with a discussion of these cases. This will be followed by the panelists offering their individual views of the "right" approach in a generic regulatory preemption case and opinions about which of the Justices has the best approach.  Additionally, the panel will examine the change from the Bush to the Obama administrations and the shift from the Rehnquist to Roberts Court, and the effect that each has had on preemption jurisprudence.  Finally, the panelists will conclude by offering their views of how their preferred approach would resolve the cases before the Court.

Panel participants include:

• Dr. Roger Pilon, The Cato Institute (Vice President for Legal Affairs; B. Kenneth Simon Chair in Constitutional Studies; Director, Center for Constitutional Studies)

• David Vladeck, Director, Bureau of Consumer Protection, Federal Trade Commission; Professor of Law, Georgetown University Law Center

• David Beam, Partner, K&L Gates, LLP (Washington, D.C.)

• David C. Frederick, Partner, Kellogg, Huber, Hansen, Todd, Evans & Figel, PLLC (Washington, D.C.); Adjunct Professor of Law, University of Texas at Austin School of Law

A reception will conclude the event.  Virginia MCLE approval is pending.

Please direct any inquiries about the Symposium to the Catholic University Law Review, attention Melodie Bales and Matthew Saunig, at cuasymposium@gmail.com or (202) 319-5159.  To RSVP, please email cuasymposium@gmail.com.

EMM

Theory: Craig on proportionality in judicial review

New on SSRN: "Proportionality, Rationality and Review" by Paul P. Craig (Oxford - Faculty of Law). Abstract:

There is a debate in certain common law jurisdictions as to whether proportionality should be accepted as a general criterion for judicial review in administrative law. This article responds to Mike Taggart’s bifurcation thesis and his argument that proportionality should be reserved for rights-based cases, with low intensity rationality review being used for other types of case. I argue to the contrary that proportionality should be a general principle of judicial review that can be used both in cases concerned with rights and in non-rights based cases, albeit with varying intensity of review. The article begins by addressing the advantages of proportionality as a head of review. The argument then shifts to consideration of Mike Taggart’s preferred position of proportionality for rights-based cases combined with low intensity review for other administrative law challenges. It is argued that this position does not cohere with positive law, and that it is not desirable in normative terms. The remainder of the article is premised on the assumption that rationality is accorded a broader meaning. I address various objections to proportionality becoming a general head of review, and contend that these arguments are mistaken or misplaced.

EMM

Alternative agency response to a plurality SCOTUS opinion

New on SSRN: "Agencies Interpreting Courts Interpreting Statutes: The Deference Conundrum of a Divided Supreme Court" by Robin Kundis Craig (Florida State). Abstract:

Plurality decisions from the U.S. Supreme Court demand interpretation, especially because they tend to occur when the Court faces important but divisive legal issues. Most courts, agencies, and scholars have assumed that federal agencies are in no better position than the lower federal courts when confronted with a potentially precedential Supreme Court plurality decision - that is, that the agency must construe the Justices’ various opinions in search of a controlling rationale. In so doing, however, the agency eschews any claim to Chevron deference, because it is no longer implementing a statute pursuant to congressionally delegated authority. Instead, it is merely an agency interpreting a court.

This Article, in contrast, argues that pursuant to the Supreme Court’s 2005 decision in National Cable & Telecommunications Association v. Brand X Internet Services, federal agencies dealing with a Supreme Court plurality decision regarding either a statute that the agency implements or the agency’s prior interpretation of that statute have another option. In the right circumstances, these post-plurality agencies can invoke their original congressionally delegated authority to implement the statute and issue new regulations that should be entitled to Chevron deference. Post-plurality agencies thus face a deference conundrum: they can defer to a fractured Supreme Court decision at the expense of their own claims to interpretive authority, or they can - admittedly with some risk in the next round of judicial review - reclaim interpretive deference for themselves.

In assessing the existence of the deference conundrum, the exact character of the plurality decision is important. Thus, this Article includes a typology of Supreme Court plurality decisions involving agency-mediated statutes. When the Chevron/Brand X framework applies, however, it offers agencies the opportunity, and arguably duty, to eliminate the confusion and inconsistency that plurality decisions promote by issuing clarifying and nationally uniform rules.

"Wow!  I didn't see that one coming.  Highly recommended." - Larry Solum, Legal Theory Blog, February 18, 2011.

Politics: Regulation caught in the middle

A good summary with lots of links: "Federal Budget Battle Centers on Regulation" on RegBlog. EMM

New administrative law articles

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

• Bailly, Rose Mary. Administrative law. 60 Syracuse L. Rev. 661-688 (2010). [H]|[L]|[W]
• Barkow, Rachel E. Insulating agencies: avoiding capture through institutional design. 89 Tex. L. Rev. 15-79 (2010). [H]|[L]|[W]
• Cuenin, Ari. Note. Mooting the night away: postinauguration midnight-rule changer and vacatur for mootness. 60 Duke L.J. 453-497 (2010). [H]|[L]|[W]
• Donovan, Emily. Student article. Deferring to the assertion of national security: the creation of a national security exemption under the National Environmental Policy Act of 1969. 17 Hastings W.-Nw. J. Envtl. L. & Pol'y 3-29 (2011). [H]|[L]|[W]
• Franklin, David L. Legislative rules, nonlegislative rules, and the perils of the short cut. 120 Yale L.J. 276-326 (2010). [H]|[L]|[W]
• Hartman, Scott A. Note. Privacy, personhood, and the courts: FOIA Exemption 7(C) in context. (AT & T v. FCC, 582 F.3d 490, 2009.) 120 Yale L.J. 379-395 (2010). [H]|[L]|[W]
• Note. Chevron and the substantive canons: a categorical distinction. (Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 1984.) 124 Harv. L. Rev. 594-615 (2010). [H]|[L]|[W]
• Obasogie, Osagie K. Prisoners as human subjects: a closer look at the Institutes for Medicine's recommendation to loosen current restrictions on using prisoners in scientific research. 6 Stan. J. C.R. & C.L. 41-82 (2010). [H]|[L]|[W]
• Raso, Connor N. and William N. Eskridge, Jr. Chevron as a canon, not a precedent: an empirical study of what motivates justices in agency deference cases. 110 Colum. L. Rev. 1727-1817 (2010). [H]|[L]|[W]
• Smith, Craig. Note. Taking "due account" of the APA's prejudicial-error rule. 96 Va. L. Rev. 1727-1765 (2010). [H]|[L]|[W]
• Zaring, David. Administration by Treasury. 95 Minn. L. Rev. 187-243 (2010). [H]|[L]|[W]

EMM

Standing: Indirect injury

The issue of standing to object to administrative actions is often frustrating because the impact of an action can cause ripples far beyond the splash. Bradford B. Kuhn describes a recent case in the California Eminent Domain Report from Nossaman LLP (by way of Lexology), "9th Circuit rules owner suffering from diminished property value has standing to challenge regulation on another property".

... If a river or creek's designation [as "impaired" inder the Clean Water Act - EMM] results in a nearby property suffering a decrease in value, does the property owner have standing to seek removal of the designation? In Barnum Timber Co. v. United States Environmental Protection Agency, No. 08-17715 (Feb. 3, 2011), the Ninth Circuit Court of Appeals ... agreed with the concept that "regulatory restrictions on one property that affect the uses to which a second property can be put [can] lower the second property's value." The Court also agreed that a regulatory restriction need not be the "sole source of the [property's] devaluation." ...

While the Barnum Timber case strictly deals with the issue of standing, it will be interesting to see whether property owner advocates use the opinion to open up a new door of potential regulatory takings cases where a regulation on one property impacts the value of another property. The Barnum Timber case may also arguably provide support for a regulatory takings claim where a property owner suffers a dimunition in value from a variety of factors.

Is this injury-in-fact, or is it speculative? How remote and attenuated can the injury be and still grant standing? Of course, the 9th Circuit could get bench-slapped by the Supreme Court. EMM

Administrative law and torts

There are three big intersections between administrative law and torts. First is the use of regulations as standards of care. Second is the various "per se" torts arising from violation of laws and regulations. Those two I'm not writing about today. The third is the creation of presumptions that shift burdens of production and proof in tort actions. On his Drug and Device Law Blog, Jim Beck (Dechert, Philadelphia) analyses statutory presumptions related to compliance with Food and Drug Administration rules in "Thinking About Compliance Presumptions". I recommend this article to you whether or not you have any interest in FDA-related issues, because it is a remarkably well laid-out analysis of the issues. The structure of Mr. Beck's analysis can be applied fruitfully in any area with legislatively-created compliance presumptions. EMM

Judicial deference: Chevron v. Skidmore

From the Customs Law blog of Lawrence Friedman (Barnes/Richardson, Chicago), "Hold the Mayo". Mr. Friedman compares Chevron deference (applied in Mayo) with Skidmore deference.

... Rather than accept Mayo's invitation, the Court found no reason to adopt a different approach to the review of administrative interpretations in tax cases than in all other cases. In his opinion for an 8-0 Court (Justice Kagan did not participate), Chief Justice Roberts stated "We see no reason why our review of tax regulations should not be guided by agency expertise pursuant to Chevron to the same extent as our review of other regulations."

Why might this be of interest to customs lawyers? If you have read this far, you probably already know where I am going and that is to Skidmore deference. As you probably know, in Mead, the Supreme Court held that some determinations by Customs and Border Protection are not entitled to full Chevron deference but may be treated as persuasive under Skidmore. A decision will be persuasive when it is internally logical, consistently applied, and otherwise carries the indications of persuasiveness. The questions raised by Mayo is whether Mead and Skidmore still apply to Customs.

I think the answer is yes. The easily seen evidence for this is that the Mayo decision cites Mead in several places and makes no indication that it is less than applicable. Second, the regulation is question in Mayo was a full-blown regulation passed after public notice and comment. Under Mead, that is the kind of regulation entitled to Chevron deference. Skidmore applies to less formal decisions like Customs binding rulings and protest determinations.

So, while Mayo dances up to it, I don't think it changes anything for customs practitioners. That, of course, does not mean that the Department of Justice might not want to explore the boundaries of the case as applied to Customs' interpretations of statutes. But, as long a[s] Mead remains the law, it appears we will continue to argue about persuasiveness under Skidmore.

If Mr. Friedman is correct, then in federal administrative cases Chevron deference will be granted to regulations passed after public notice and comment, and Skidmore deference - looking at "indications of persuasiveness" - will be granted to less formal rules and judicial-type decisions. EMM

Theory: New approach to judicial review of agency actions from David Zaring

From David Zaring (Penn-Wharton), "Reasonable Agencies", 96 VA. L. REV. 135 (2010). Abstract:

This article argues that the complex doctrine of judicial review of administrative action––containing no less than six separate tests depending on the sort of agency action to be reviewed – both descriptively is and normatively should be simplified into a “reasonable agency” standard. Courts, following step 2 of the Chevron doctrine, have started to sneak in a reasonableness standard to their review in lieu of make the difficult distinctions required by current doctrine. Scholars, evaluating the difference between the various doctrinal tests, have started to note their increasing similarity. Empirical research, to which this article adds an additional study have noted that regardless of the standard of review, courts affirm agencies slightly more than two thirds of the time; the variance of the validation rates of agency action, regardless of the standard of review, is surprisingly small. A reasonable agency standard would simplify and clarify administrative law, better describe what courts actually do when confronted with agency action, and better explain the judicial role in the administrative state.

Thanks to Richard Pierce (George Washington) at Jotwell for the pointer. EMM