Administrative Law Prof Blog

Unlicensed practice enforcement action in Missouri

David E. Roland, a member of the Missouri Bar and the Freedom Center of Missouri, has posted an interesting document on JDSupra. It is the Defendants motion for summary judgment in Missouri Veterinary Medical Board v. Gray, Case No. 10CN-CV00842, Clinton County Circuit Court, served March 30, 2011. Apparently, the Plaintiff floats horses' teeth* but is not a licensed veterinarian in the state, and the Board says that this is unlicensed practice of veterinary medicine. Mr. Roland summarizes his client's position in the case:

Accused by a government agency of engaging in criminal activity, Brooke Gray has for months been fighting to be given the constitutional protections usually afforded to the criminally accused: a presumption of innocence, the right to invoke her Fifth Amendment privilege without being penalized, the right to have her case heard by a jury of her peers. It appears that the trial court is unwilling to afford her these protections. Ironically, the very statute that the Veterinary Medical Board has invoked as authority to strip her of her livelihood forbids the Board to seek injunctive relief unless the accused is also being criminally prosecuted - meaning that they [sic] would have the very constitutional protections Brooke has been demanding. Brooke has no desire to actually be prosecuted, but by throwing down the gauntlet and demanding that the Board either thoroughly treat her as the criminal it has accused her of being - including granting her constitutional protections - or drop the case entirely, she is denying the Board its ability to keep this case on its own terms.

Setting aside the emotional content, there is an interesting issue here about the intersection between regulation and criminal prosecution. Many Federal agencies may choose between civil and criminal responses to violations of the same statute or regulation. The Missouri statutes seem less clear. Students would probably like to know how this conflict would fall out in their jurisdictions. If anyone not involved in the case who knows more about the facts, history, and local law involved would like to write up an analysis of the matter, I'd be happy to post it for our readers (email me directly).

* "Floating teeth" means filing a horse's teeth so that it can chew properly. Horses may not get enough natural wear on their teeth, which can then grow until the grinding surfaces no longer mesh adequately.

EMM

 

Congressional hearing on the future of the APA

New on RegBlog (Penn.): "Scholars Debate Whether the Administrative Procedure Act Provides Sufficient Transparency". This post reviews a House hearing on March 29, 2011, starring several administrative law heavyweights including Dr. Richard Williams from George Mason's Mercatus Center and Professor Robert Glicksman from George Washington Law. Lots of links. EMM

Note on the relationship between regulators and standard-setting organizations

New in the TEXAS LAW REVIEW: "Note, Why the Enforcement Agencies' Recent Efforts Will Not Encourage Ex Ante Licensing Negotiations in Standard-Setting Organizations" by Lauren E. Barrows, 89 TEXAS L. REV. 967 (2011). Description:

Enforcement agencies, through a series of speeches and documents, have recently adopted a policy to encourage private industry groups known as standard-setting organizations (SSOs) to engage in ex ante licensing negotiations.  Patent holders and many potential licensees are typically SSO members.  As a group, they could potentially determine licensing terms when considering whether to incorporate patented technology into a standard but do not for fear of antitrust liability.  In this Note, Barrows argues that given the new policy, SSOs will continue to not engage in ex ante licensing negotiations without further agency action.  DOJ and FTC statements currently do not provide sufficiently clear guidance.  So, SSOs will continue to fear antitrust liability, and thus the new policy will not be implemented.  Not only does this undermine the agencies’ credibility, writes Barrows, it will also remain unclear whether ex ante licensing negotiations are actually desirable.

Barrows provides some background on SSOs and their importance, specifically in the context of the IP-intensive, high-technology industries.  Barrows explains that, in an effort to mitigate holdup, many SSOs require members to license any patented technology incorporated into a standard on certain terms.  But, because SSOs fear antitrust liability, they do not determine these terms through ex ante licensing, and the terms that they do use are vague.  Barrows notes that could undercut their usefulness.

Moreover, Barrows argues that the approach of the enforcement agencies matters.  She provides an overview of the Sherman Act and then looks at two violations potentially posed by ex ante licensing negotiations.  Barrows then analyzes the recent statements of the DOJ and FTC, arguing that the agencies failed to provide clear guidance to the SSOs to encourage them to undertake such negotiations.  Finally, she offers a pair of suggestions for limiting the chance that SSOs who engage in such negotiations will face liability.

Antitrust is a field we usually don't mess with in introductory administrative law courses, but the lessons learned and principles established in the antitrust arena (with its high stakes inviting expensive appellate litigation) often filter down to more everyday regulatory activities. It follows that keeping up with antitrust stuff is a good idea. The concept of private regulation — the delegation of regulation from government to private authorities — is growing. The relationship between private regulators, such as the standard setting organizations discussed in this Note, and government regulators is therefore important. EMM

Theory: Marmor on authority

New on bepress: "An Institutional Conception of Authority" by Andrei Marmor (USC - the California one, not the South Carolina one). Abstract:

The essay develops a conception of practical authorities that ties their legitimacy to the particular nature of the social practice or institution in which practical authorities invariably operate, and the terms of the subjects’ participation in that practice. The main argument of the paper draws on the distinction between what it takes to have practical authority and what would make it legitimate. The general idea is that what it takes to have practical authority is always determined by a social or institutional practice, and thus the legitimacy of any given authority crucially depends on the nature of the practice and the terms of participation in it. One result of this argument is that there is no single general principle that determines the conditions of the legitimacy of authorities. In some cases, legitimacy depends on consent, in other cases, it does not; either way, it is the nature of the practice or institution in which a practical authority operates that crucially determines the authority’s legitimacy.

The main argument of this essay is preceded by a clarification of the nature of authoritative directives and the obligatory nature of the reasons to comply with a legitimate directive. I argue that the obligation to comply is not directional (viz., owed to the authority), and that it does not involve the kind of moral accountability that we normally associate with directional obligations.

Very, very theoretical. However, I'm going to read it because (a) Marmor is a smart person, and (b) I suspect that this framework for analysis may be useful for understanding some of the practical aspects of the behavior of people in government agencies. EMM

Secret admin law sauce - I mean, source

I probably shouldn't be giving away my secrets, but I highly recommend RegLaw from Penn. This interdisciplinary blog often has the best analysis of current administrative law issues.

RegBlog tracks key developments related to regulation and regulatory processes. New research, new ideas, and new regulatory proposals and policies – all brought to you by the Penn Program on Regulation.

With their new format coming on line April 5, this will be an even better source for news and views. EMM

Bambauer on "Rules, Standards, and Geeks"

I find the issue of setting regulatory standards both interesting and under-addressed. As a practical matter, rules and standards are the nitty gritty of administrative law. Setting them (for the policy maker) and finding them (for the practitioner) are often difficult. A recent article on SSRN by Derek E. Bambauer (Brooklyn), "Rules, Standards, and Geeks", addresses this in the context of information technology. Abstract:

Policymakers and scholars generally assume that information technology is best regulated using standards, not rules. This Article argues that rules are often the superior choice. Those favoring standards typically focus on the wrong problem: they seek to prevent data spills, rather than to mitigate their impact. Rules can helpfully reduce a breach's effects. For technology, rules are preferable when they can specify a minimum level of protection that is relatively effective; where obsolescence occurs slowly; and where monitoring implementation is low-cost and accurate. The Article sets out examples of where each type of approach is superior. Application design is best governed by standards, while the transport and storage of data, along with identification of access to information, are best dealt with via rules. The Article questions the prevailing consensus in favor of standards for regulating technology, and also seeks to create testable predictions about when rules will work better.

Thanks to Larry Solum at the Legal Theory Blog for the pointer. EMM

New admin law articles

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

• Criddle, Evan J. Mending holes in the rule of (administrative) law. 104 Nw. U. L. Rev. 1271-1280 (2010). [H]|[L]|[W]
• Jo, Michael. Note. National security preemption: the case of chemical safety regulation. 85 N.Y.U. L. Rev. 2065-2098 (2010). [H]|[L]|[W]
• Krohn, David R. Pekarek. Comment. Cooper Technologies Co. v. Dudas: laying the foundation for minimal deference. (Cooper Technologies Co. v. Dudas, 536 F.3d 1330, 2008.) 104 Nw. U. L. Rev. 1213-1251 (2010). [H]|[L]|[W]
• Mendolera, Lauren. Note. How to stop a mole: a look at burrowing in the federal civil service. 13 N.Y.U. J. Legis. & Pub. Pol'y 643-672 (2010). [H]|[L]|[W]
• Pojanowski, Jeffrey A. Reason and reasonableness in review of agency decisions. 104 Nw. U. L. Rev. 799-852 (2010). [H]|[L]|[W]

EMM

New in Regulation & Governance

New in the March issue of REGULATION & GOVERNANCE. Free access as of March 25, 2011.

• Susan S. Silbey, Guest Editor's Introduction, The sociological citizen: Pragmatic and relational regulation in law and organizations, 5 REG. & GOVERNANCE 1 (2011), available at http://onlinelibrary.wiley.com/doi/10.1111/j.1748-5991.2011.01106.x/full.
• Ruthanne Huising & Susan S. Silbey, Governing the gap: Forging safe science through relational regulation, 5 REG. & GOVERNANCE 14 (2011), available at http://onlinelibrary.wiley.com/doi/10.1111/j.1748-5991.2010.01100.x/full.
• Roberto R. C. Pires, Beyond the fear of discretion: Flexibility, performance, and accountability in the management of regulatory bureaucracies, 5 REG. & GOVERNANCE 43 (2011), available at http://onlinelibrary.wiley.com/doi/10.1111/j.1748-5991.2010.01083.x/full.
• Salo V. Coslovsky, Relational regulation in the Brazilian Ministério Publico: The organizational basis of regulatory responsiveness, 5 REG. & GOVERNANCE 70 (2011), available at http://onlinelibrary.wiley.com/doi/10.1111/j.1748-5991.2010.01099.x/full.
• Rodrigo Canales, Rule bending, sociological citizenship, and organizational contestation in microfinance, 5 REG. & GOVERNANCE 90 (2011), available at http://onlinelibrary.wiley.com/doi/10.1111/j.1748-5991.2010.01095.x/full.
• Fiona Haines, Addressing the risk, reading the landscape: The role of agency in regulation, 5 REG. & GOVERNANCE 118 (2011), available at http://onlinelibrary.wiley.com/doi/10.1111/j.1748-5991.2010.01097.x/full.
• Michael J. Piore, Beyond Markets: Sociology, street-level bureaucracy, and the management of the public sector, 5 REG. & GOVERNANCE 145 (2011), available at http://onlinelibrary.wiley.com/doi/10.1111/j.1748-5991.2010.01098.x/full.

EMM

When due process does not require a hearing

The general rule for due process in the context of quasi-judicial administrative actions is "notice and an opportunity to be heard". But sometimes a hearing is not necessary. Why? Either because a hearing would not make any difference - the facts are a matter of record and the rules are straightforward - or because the respondent has already been heard on the issues somewhere else. An example of the latter appears in "Terminating of a tenured public officer without an administrative hearing" on the New York Public Personnel Law blog.

New York City police officer John Pirozzi was terminated from his position without a hearing after he was convicted of a crime he committed in the line of duty and that the appointing authority deemed constituted a violation of Pirozzi’s oath of office.

Claiming that he was entitled to administrative due process [i.e., a hearing] before he could be removed from his position, Pirozzi sued. The department, citing Section 30(1)(e) of the Public Officers Law, argued that Pirozzi was removed by operation of law upon his conviction and thus he was not entitled to a pre-termination hearing.

The Appellate Division agreed and dismissed Pirozzi’s petition. The court said that Pirozzi was properly terminated from the Police Department without a hearing in light of his conviction of aggravated harassment in the second degree.

Pirozzi had already been heard on the issue of whether he had committed a crime, and at a higher standard of proof (beyond a reasonable doubt) that would be required in an administrative discharge hearing (proponderance or more likely than not). Another hearing on the same issue would be a waste of time. There is a follow-on question, however. What happens if Pirozzi's conviction is overturned on appeal?

[I]n the event a public officer is terminated pursuant to Section 30(1)(e) as a result of his or her conviction of a felony, or a crime involving the violation of his or her oath of office, and the conviction is later reversed or vacated, the individual may request reinstatement to his or her former position ... In the event the appointing authority denies the individual’s request for reinstatement his or her former position, he or she is entitled to a hearing with respect to that decision if the initial conviction was the only basis for the termination.

EMM

Theory: Dropping the nondelegation doctrine

New on SSRN, "When Delegation Begets Domination: Due Process in the Administrative State" by Evan J. Criddle (Syracuse). Abstract:

In federal administrative law, the nondelegation doctrine purports to forbid Congress from entrusting its “legislative powers” to federal administrative agencies. The Supreme Court developed this doctrine during the nineteenth century to safeguard republican values embedded in the Constitution. Over time, however, the Court has loosened the doctrine’s grip, permitting federal agencies to wield broad lawmaking powers subject only to minimalist “intelligible principles” established by Congress. The Court has defended this approach on pragmatic grounds, arguing that Congress cannot perform its essential legislative functions without entrusting lawmaking authority to administrative agencies. What the Court has never adequately addressed, however, is the extent to which congressional delegation potentially undermines liberty by instituting domination - the capacity for arbitrary state action. Although the Court continues to invoke the nondelegation doctrine’s republican ideals, it has yet to articulate a coherent legal theory to explain how its anemic review of congressional delegations can be squared with the Constitution’s liberty-promoting checks and balances.

This Article contends that courts can reconcile administrative lawmaking with the Constitution’s republican design, but only if they abandon the nondelegation doctrine’s antiquated separation-of-powers rationale. In its place, courts should focus upon due process as the primary constitutional constraint on congressional delegation. Although the link between delegation and due process has received only sparse attention in legal scholarship, the Supreme Court has employed due process analysis in a variety of cases involving both state and federal delegations. Three general principles inform these cases: to ensure that congressional delegation does not beget domination, agency lawmaking must be (1) constrained by a basic substantive standard, (2) channeled through fair and deliberative administrative procedures, and (3) subject to political accountability and judicial review. This subterranean due process model challenges the conventional wisdom that due process is inapplicable to agency rulemaking. It also has a variety of important - and potentially controversial - implications for other areas of federal administrative law, including the scope of Chevron deference, the Administrative Procedure Act’s applicability to presidential lawmaking, and the constitutional status of federal delegations to states, tribes, private entities, and international organizations.

Interesting. EMM

Evidence - "because I said so" isn't enough

One of the more frequent causes of court appeals of administrative decisions arises from the tendency of administrative decision makers to make decisions based on their experience and gut feelings rather than objective evidence. Somebody who has been in the business for a long time may come to believe that she or he knows what is going on and everyone else should just listen - ipse dixit in old Law Latin. But that's not due process. On her Law of the Land blog, Patty Salkin describes a recent Pennsylvania case where this happened in "PA Appeals Court Agrees that City Must Issue Condition Use Permit for Strip Club Where City Failed to Meet Burden of Proof".

The Pittsburgh zoning code was updated in 2009 and permitted adult entertainment as a conditional use in the Urban Industrial zoning district.  Marquise wanted to operate a strip club on land in the urban industrial zone, but the City Council failed to hold a hearing as was required by the Pittsburgh Code and Marquise’s application was subsequently denied.  The trial court granted the application and the City appealed.

The City argued on appeal that it had presented substantial evidence that the proposed strip club would cause harm to the health, safety and welfare of the community. The Court noted that the burden of persuasion as to health, safety and welfare concerns falls on the objector, in this case the City.  The Court looked to the language in the ordinance and determined that the burden of persuasion had not expressly shifted to the applicant.  Instead, the Court noted that the applicant only had to show specific requirements while the City had the burden to show all general policy concerns and negative effects.  Marquise satisfied all of the required specific conditions set out in the Pittsburgh Code.  The Court further noted that the City only presented speculative evidence of the possible harm that would be caused by granting the conditional use permit.  Additionally, the City failed to present any evidence of potential health and safety impacts as well as evidence that the proposed strip club would cause a detrimental effect on traffic.  The Court held that there was sufficient evidence to support the trial court’s decision.

I guess these cases are often about adult entertainment facilities because you have enough money on one side and enough moral outrage on the other to get the case to a published level. Speculation isn't evidence. Also, by not holding a hearing the City Council lost the benefit of judicial deference. EMM

Comic book law

One of the most entertaining blawgs I follow is LAW AND THE MULTIVERSE: SUPERHEROES, SUPERVILLAINS, AND THE LAW, writting by attorneys James Daily and Ryan Davidson. They examine the legal implications of comic book characters and situations, and sometimes similar movie characters and situations. Often I forward them to my faculty members as potential discussion or exam questions. Today's post is about administrative and criminal law in the discovery and distribution of a new drug. Introduction:

Limitless opened this weekend, and is the subject of LAW AND THE MULTIVERSE'S second look at a movie. Spoilers to follow, as always.

The basic premise is that Edward Morra (Bradley Cooper) stumbles across a drug, “NZT,” which massively boosts one’s memory and intelligence. This enables him to write his unstarted-and-overdue book in a matter of days, learn any language in a matter of hours, and become a concert-level pianist in a long weekend. So basically, what we’ve got here is every nerd’s fantasy: if I was only smart enough, I’d be able to get the money and the girl.

The movie has been described as “more interesting than it has any right to be,” which is about right. But there are a number of legal issues in the movie to talk about, mostly about the drug itself.

First, a high-level overview of how drugs are regulated in the US.  For a drug to be legally prescribed or distributed it must be approved by the Food and Drug Administration.  Clinical trials for new drugs must also have FDA approval.  Some drugs are further restricted by the Controlled Substances Act, which establishes a schedule of controlled substances, some of which can be prescribed by a doctor with a DEA number and some of which are banned outright (e.g. heroin).  Finally, individual states can add to (but not subtract from!) the federal controlled substances schedule.  Now we’ll look a little closer at how all of this affects NZT.

Daily and Davidson have discussed other administrative law topics, including the Social Security System, air traffic control and the FAA, Superman's immigration status, and federal export control laws. Also torts, contracts, criminal law, Constitutional law, among other subjects. And the comments are usually thoughtful. Fun and educational! EMM

New admin law articles

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

• Cohen, Aliza M. Note. NEPA in the hot seat: a proposal for an office of environmental analysis. 44 U. Mich. J.L. Reform 169-217 (2010). [H]|[L]|[W]
• Jordana, Jacint. Autonomous regulatory agencies in democratic Mexico. 16 Law & Bus. Rev. Am. 753-779 (2010). [H]|[L]|[W]
• Weldon, Ryan G. and Michael E. Patterson. Maintaining the Ninth Circuit's clarified arbitrary and capricious standard of review for agency science after Lands Council v. McNair. 31 Pub. Land & Resources L. Rev. 55-124 (2010). [H]|[L]|[W]

Note that the author of the first note above is our correspondent from the new MICHIGAN JOURNAL OF ENVIRONMENTAL AND ADMINISTRATIVE LAW. EMM

Administrative remedies first, then Constitutional claims

From the FDA Law Blog of Hyman, Phelps & McNamara, P.C. (DC), "Judge Snuffs Out Holistic Candlers Lawsuit; Constitutional Challenge Falls on Deaf Ears".

Last week, Judge Richard Leon of the U.S. District Court for the District of Columbia granted FDA’s Motion to Dismiss a lawsuit filed in April 2010 by a group of ear candle advocates after the Agency issued about 15 Warning Letters ... to companies marketing the products saying that their ear candles are unapproved medical devices and requesting that the companies cease marketing and distributing their products. ...

[T]he holistic candlers alleged violations of their First, Ninth, Tenth, and Fourteenth Amendment rights, and sought injunctive relief staying FDA’s determination that their ear candles are unapproved medical devices, as well as declaratory relief voiding FDA’s determination. ...

In addition to ruling that the holistic candlers lacked subject matter jurisdiction (standing, ripeness), Judge Leon ruled that the holistic candlers’ efforts to obtain injunctive and declaratory relief “is nothing more than a pre-enforcement challenge foreclosed by” the U.S. Supreme Court’s 61-year old decision in Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594 (1950). ...

Finally, Judge Leon wrote in his opinion that even if the holistic candlers had standing to sue the FDA, if their claims were ripe, and their administrative remedies were exhausted, their remaining statutory and constitutional claims would still fail.  “Some of these claims fail because they assert conclusory allegations without pleading the elements necessary to prevail as a matter of law.  Others claims are insufficient as a matter of law.  Still others fail because no private right of action exists for the alleged violations,” wrote Judge Leon in his 14-page opinion.  Thus, “[i]n sum, plaintiffs’ remaining claims are foreclosed by plaintiffs’ failure to exhaust administrative remedies, or they fail simply as a matter of law.”

It will be interesting to see if this goes to the D.C. Circuit. EMM

New admin law journal and call for papers

I received this note this morning:

Dear Administrative Law Prof Blog Editors,

I am not sure if this is of interest to you or your readership, but students at the University of Michigan Law School have just established the Michigan Journal of Environmental and Administrative Law. The Michigan Journal of Environmental and Administrative Law will publish articles and student notes on all aspects of environmental law and policy, as well as both general and specific topics of administrative law that may be relevant to issues that arise in environmental law.  The Journal will generally focus on the American legal system.  However, it welcomes interdisciplinary and international scholarship that advances understanding of environmental and administrative law and policy.

We are currently soliciting article submissions for our first volume via ExpressO. Our web page will be up and running shortly.

Please let me know if you have any questions or would like any additional information.

Thank you! Sincerely,

Aliza Cohen

I'm sure that all of you, gentle readers, will be interested in this. Ms. Cohen's email address is cohenam at umich dot edu. EMM

Criminal enforcement of complicated regulations

On his Customs Law blog, Lawrence Friedman (Barnes/Richardson, Chicago) reviews a recent 9th Circuit opinion on the edge of administrative law in "Export Conviction Upheld".

Compliance people all understand that export controls law is almost impossibly complicated. It is hard to image a more complicated set of laws, especially when criminal enforcement is involved. But, is the law so complicated that it is unconstitutionally vague? ...

... the defendant argued that the export controls laws are too vague to be constitutional. The Ninth Circuit discovered what compliance people have always known: it is damned complicated but not impossible to figure out. So, the Court upheld the conviction. While I have no sympathy for the defendant based upon his bad acts, I do have some sympathy for his criminal defense lawyer. Apparently, he got so frustrated trying to figure out the Commerce Control List that he through up his hands and said, "This can't be constitutional."

EMM

Policy: Viscusi on why regulation by litigation is bad

New on SSRN: "Regulation, Taxation, and Litigation" by W. Kip Viscusi (Vanderbilt). Abstract:

Policy tools that potentially foster efficient levels of health and safety are regulation, litigation, and taxation. Most U.S. regulatory agencies set standards that are more stringent than the efficient level of safety. As a result, there is strong justification for a regulatory compliance defense when companies are in compliance with specific regulations. Given the recent U.S. Supreme Court ruling in Wyeth v. Levine, legislation would be needed to establish a meaningful defense. Tort litigation on behalf of government entities may lead to settlements that do not involve conventional damages payments but rather impose both regulation and taxation. The Master Settlement Agreement for the cigarette litigation included regulatory components that had potentially anti-competitive effects. It also imposed an excise tax equivalent of 40 cents per pack that is prospective and will affect all firms, including those that have exhibited no wrongful conduct. New entrants and smokers were excluded from the negotiations, which generated disproportionate financial benefits to some states. The use of litigation to impose regulations and taxation should be discouraged.

EMM

Levy and Glicksman on agency-specific interpretation

In TEXAS LAW REVIEW, "Agency-Specific Precedents" by Richard E. Levy (Kansas) & Robert L. Glicksman (GWU). Introduction:

Administrative law presumes the existence of a body of generally applicable legal principles and doctrine concerning administrative agencies. However, Professors Levy and Glicksman describe their observation of a phenomenon that they refer to as “agency-specific precedents.” As courts rely on other cases involving the agency under review and repeat the same approaches, legal doctrine often develops unique characteristics as to specific agencies. At times, these formulations deviated significantly from the conventional understanding of administrative law.

The authors argue that this phenomenon has important implications for administrative law. The proliferation of such precedents creates anomalies and inconsistencies in some cases and hampers the development of administrative law in others. Yet, there may be advantages to agency-specific precedents. This article calls attention to the phenomenon of agency-specific precedents, explores its causes, and discusses its implications.

The authors’ thesis is that agency-specific precedents are a manifestation of the “silo effect,” which describes the tendency of subdivisions of large organizations to develop their own bureaucratic imperatives that create obstacles to information sharing and other forms of cooperation. The authors use five case studies of agency-specific precedents involving different agencies and different administrative law doctrines to make their case.

The authors argue that agency-specific precedents are a manifestation of the silo effect. They note how the dynamics of information costs, the specialized bar, and the process of judicial review tend to produce that effect. Normatively, the authors conclude that while the balance of costs and benefits from agency-specific precedents varies according to the circumstances, greater attention to this phenomenon would help break down undesirable agency-specific precedential silos.

EMM

Stopping regulatory action

In "Ninth Circuit Tells Organic Farmers To Beet It", the Drug and Device Law blog discusses a recent 9th Circuit case on preliminary injunctions against Federal regulations. While this is more of a remedies issue than administrative law, it does come up when people try to stop agency action.

... APHIS has been trying to completely or partially deregulate genetically engineered sugar beets, and has been sued repeatedly by organic farmers as a result. In 2005, APHIS attempted to completely deregulate Roundup Ready sugar beets, but a district court blocked that attempt ... [I]n August 2010 APHIS issued permits authorizing the planting of Roundup Ready sugar beet stecklings (stecklings are baby beet plants that have neither roots nor seeds) [cuttings that, when planted, can grow into complete beet plants - ed.]. ... Again, the organic farmers sued, and again the district court sided with the farmers, issuing a preliminary injunction and ordering the destruction of the stecklings ...

This time, however, the Ninth Circuit overturned the injunction, holding that the plaintiffs had not established that irreparable harm was "likely," as opposed to merely possible. Center for Food Safety v. Vilsack, __ F.3d __, 2011 WL 676187, at *5 (9th Cir. Feb. 25, 2011). The court found the record barren of any evidence that planting the stecklings would lead to contamination or cross-pollination, and thus the farmers’ concerns were overblown. Id. Although the farmers raised Cain (cane?) about the possibility that the stecklings would in the future blossom and cross-pollinate with organic sugar beets, the court found that these fears were nothing more than speculative forecasts about future regulatory decisions, and weren’t ripe for challenge until the potential regulations actually sprouted to life and took root. ... In other words, wait until APHIS actually deregulates sugar beets before suing. ...

... ("[A]n invocation to chaos theory is not sufficient to justify a preliminary injunction.")

EMM

Sharpe on legislating preemption

Jamelle Sharpe (Illinois) has posted "Legislating Preemption" on SSRN. Abstract:

Federal preemption is perhaps the most important public law issue of the day. The stakes in preemption cases are enormous, as preemption determines whether the federal government or the states control regulatory policy in a host of politically controversial contexts. Congress clearly has primary constitutional authority in setting federal preemption policy, but for numerous political and practical reasons it cannot be solely responsible for its implementation. Determining which organ of the federal government is best at implementing preemption policy has therefore become the central preoccupation of the academic literature. While this comparative institutional analysis is certainly important in allocating preemption policy making business, it has elided a very important issue: Congress has an interest not only in what substantive preemption policy should be, but also in who should be primarily responsible for implementing it. In other words, there is a delegation choice to be made by Congress for which current institutional choice approaches to preemption do not fully account.

This Article addresses the delegation issue be providing a framework for how Congress should be “legislating preemption.” It identifies two previously overlooked challenges posed by delegating preemption implementation responsibility to the federal courts instead of to federal agencies. First, Congress has only weak policing tools when it delegates to federal courts, and therefore little opportunity to correct the judiciary when it strays from Congress’s preemption policy preferences. Second, the Supreme Court has adopted what this Article terms a Centralization Default in its preemption jurisprudence, which leads it to generally disfavor anti-preemption arguments when Congress does not provide clear instructions to the contrary. The Article then proposes that Congress respond to these challenges by drafting broad standards and creating favorable legislative history when preemption policy coincides with the Centralization Default. By contrast, Congress should draft clear rules when it wants to overcome the Centralization Default. After developing the “legislating preemption” framework, the Article uses the Dodd-Frank Act’s national bank preemption provisions to illustrate what happens when Congress does not apply it. As the Article shows, Congress’s failure to account for its weak post-delegation policing tools or the Centralization Default will lead to more federal preemption than Congress intended.

EMM