Administrative Law Prof Blog

Policy: Adler on the REINS Act

Jonathan H. Adler (Case Western Reserve) posts a link to download a new article in "Would the REINS Act Rein In Federal Regulation?" in The Volokh Conspiracy.

I have an article in the new issue of Regulation on the REINS Act, which would prevent major regulations from taking effect without the passage of a joint resolution of approval by Congress.  The article is largely based on my Congressional testimony about the Act, and summarizes the arguments for and against the measure. 

Many of the comments are literate. EMM

Solum on standards of review

On his Legal Theory Blog, Larry Solum (Illinois) introduces some of the problems raised by standards of review in "Legal Theory Lexicon: Standards of Review":

Law students begin to encounter the concept of a "standard of review" earlier in the first year. That's not surprising. First-year law students read appellate cases, and every appellate decision explicitly or implicitly includes a standard of appellate review--a rule that defines the relationship between the appellate and trial court. For example, the standard of appellate review on questions of law is "de novo." ...

Contexts

The phrase "standard of review" is used a variety of legal contexts.  Let's take a look at some of them.

•     Judicial Review of Jury Decisions ...

•     Appellate Review of Trial Court Decisions ...

•     Judicial Review of Legislation ...

•     Judicial Review of Administrative Agencies: The Administrative Procedures Act requires federal courts to uphold the actions of federal agencies if they are supported by "substantial evidence."  The famous "Chevron doctrine" requires federal courts to defer to an agencies interpretation of a statute, so long as that interpretation is "reasonable."  The Chevron doctrine seems to imply that administrative agencies should receive more deference on questions of law than trial courts receive under the de novo standard of appellate review. ...

This is a good, quick introduction to the subject. EMM

New administrative law articles

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

• Cox, Justin. Maximizing information's freedom: the nuts, bolts, and levers of FOIA. 13 N.Y. City L. Rev. 387-424 (2010). [H]|[L]|[W]
• Goetz, Justin. Note. Hold fast the keys to the kingdom: federal administrative agencies and the need for Brady disclosure. 95 Minn. L. Rev. 1424-1455 (2011). [H]|[L]|[W]
• Pollack, Michael C. Note. Chevron's regrets: the persistent vitality of the nondelegation doctrine. 86 N.Y.U. L. Rev. 316-350 (2011). [H]|[L]|[W]
• Tushnet, Mark. Brainerd Currie Memorial Lecture. Administrative law in the 1930s: the Supreme Court's accommodation of progressive legal theory. 60 Duke L.J. 1565-1637 (2011). [H]|[L]|[W]
• Yagoda, Jay A. Seeing is believing: the detainee abuse photos and "open" government's enduring resistance to their release during an age of terror. 21 U. Fla. J.L. & Pub. Pol'y 273-306 (2010). [H]|[L]|[W]

EMM

The difference between excusable neglect and stupidity

On Above the Law, Christopher Danzig illustrates the difference between excusable neglect and a "bonehead mistake" in "How to Lose a Case With Simple Computer Cluelessness".

For attorneys, missing deadlines is a big no-no. BIG no-no. A Goodyear blimp-sized no-no. People have literally died because of blown deadlines. Cases worth millions of dollars get tossed out because of missed deadlines, even if someone has a decent excuse.

That being so, I do not envy the lawyer who had to tell his client that the 4th Circuit shut down their lawsuit because he didn’t know how to use his Microsoft calendar. ...

The U.S. District Court for the Eastern District of Virginia ruled on a breach of contract and fiduciary duty dispute between Symbionics Inc. and its former president, Christopher J. Ortlieb, in December 4, 2009.

Symbionics planned to file an appeal on the last day of the standard 30-day window. But, uh oh, the company missed the deadline by a day, due to what the 4th Circuit later — and generously — called a computer “quirk” and “glitch”:

The alleged glitch occurred when, after counting twenty-seven days through December 31, 2009, counsel changed the month on the calendar display to January in order to continue the computation. Counsel failed to notice that the calendar did not automatically advance to January 2010 but instead reverted to January 2009.

Consequently, counsel mistakenly referenced the January 2009 calendar when he completed the calculation of the thirty-day window to appeal, which resulted in counsel’s erroneous determination that the deadline was January 5.

... The company apologized to the court, District Judge Anthony Trenga ruled the mistake was “excusable neglect,” and he gave Symbionics an extension. ...

In late May, the 4th Circuit benchslapped Symbionics in an unpublished, per curiam opinion [PDF] that basically states the obvious: Learn how to use a freakin’ computer.

We find nothing extraordinary or unusual about counsel’s calendaring error that should relieve Symbionics of its duty to comply with the time limit of Rule 4(a)(1). Counsel’s total dependence on a computer application—the operation of which counsel did not completely comprehend—to determine the filing deadline for a notice of appeal is neither “extraneous” to nor “independent” of counsel’s negligence…

[T]his neglect is precisely the sort of “run-of-the-mill inattentiveness by counsel” that we have consistently declined to excuse in the past.

If you want a technical look at the Circuit’s analysis of what exactly “excusable neglect” means, check out this Law Technology News story.

More broadly though, it’s 2011. Not knowing how to use Outlook isn’t and shouldn’t be an excuse for anything. It’s a disability.

And somehow, there are attorneys (often senior-level ones) who still don’t think they need to learn this basic stuff. We’re not even talking about more complex e-discovery processes. It’s just scheduling your day! (If counting the days yourself is too hard, there are websites that do it for you.) A speaker at a conference I recently attended said the best thing attorneys with this mindset can do… is retire.

This kind of ignorance loses cases, makes routine office work less efficient and could even lead to malpractice claims. ...

Agencies are often even more strict on deadlines, either because of specific statutory direction or just wanting to close matters out quickly. Don't miss deadlines, and don't wait until the last day to file. EMM

Respect for the hearing officer's evaluation of witness credibility

On his New York Public Personnel Law blog, Harvey Randall describes two cases that illustrate an important general rule in administrative proceedings—reviewing courts will not give appellants a mulligan on matters that turn on the credibility of witnesses. "Witness creditability determinations".

In an administrative disciplinary action, the hearing officer's determination is frequently based on his or her evaluation of the credibility of witnesses testifying at the disciplinary hearing. ...

Susan Vaziri-Cohen was terminated after being found guilty of charges that she had falsified agency records, repeatedly failed to follow her superior's instructions and made demeaning remarks to a co-worker about her supervisor.

The Hearing Officer recommended that Vaziri-Cohen be dismissed from service ...

Her union local appealed but lost. Why?

The court pointed out that here the finding of the hearing officer with respect to the first charge -- falsification of official records -- turned on issues of credibility and inferences drawn by the hearing officer from the evidence presented. Finding that the conclusion drawn by the hearing officer was supported by both direct and circumstantial evidence, the court sustained the hearing officer's finding. Noting that both Vaziri-Cohen and her supervisor testified during the disciplinary hearing, the court said that “it was within the province of the Hearing Officer to implicitly reject the credibility of [Vaziri-Cohen's] exculpatory explanation.”

As to the second charge -- Vaziri-Cohen's alleged failure to follow work orders -- her supervisor testified that despite several successive directives by him concerning the inclusion of certain information in a client's medical record over the course of one week -- Vaziri-Cohen failed to add the information as directed. Vaziri-Cohen, on the other hand, testified that she had made the changes directed by her supervisor. The court said that this conflict in the testimony given at the disciplinary hearing raised an issue of credibility implicitly resolved by the Hearing Officer's ruling against her. ...

Creditability was also an issue in the Pelayo case ... Henry Pelayo, a New York City police officer, was dismissed from his position after being found guilty of administrative disciplinary charges alleging that he “knowingly gave false material testimony in felony court proceedings, and that he provided false information concerning the events underlying [those] criminal proceedings in departmental ... forms.”

The court said that Pelayo['s] “challenges to the credibility determinations of the [hearing officer] are unavailing since, in an Article 78 proceeding, the reviewing court may not weigh the evidence, choose between conflicting proof, or substitute its assessment of the evidence or witness credibility for that of the administrative fact-finder.”

This tracks with the general appellate rule—evaluations of credibility by the judge, jury, or hearing officer who actually sees and hears the evidence will not be disturbed absent something really screwy. (Of course, the exceptions don't say that, but that's what they mean.)

Note that this rule generally does not apply to administrative review of hearing officer decisions, especially when the hearing officer's role is to create a record for a decision by someone else in an agency. But in agency review as a practical matter one can expect a reviewer to defer to evaluations of evidence by the person who actually saw and heard the witnesses. It may still be worth while in an agency review to offer evidence that a witness lied like a rug and the ALJ missed it, but don't bother wasting a court's time with this in judicial review. EMM

Useful reference: Preemptions in Federal legislation

From the CBO, "Preemptions in Federal Legislation in the 111th and Previous Congresses", June 21, 2011:

This supplement to the Congressional Budget Office’s (CBO’s) series of publications reporting on federal mandates, as defined by the Unfunded Mandates Reform Act of 1995, focuses on preemptions, a type of mandate that would limit the authority of state, local, or tribal governments to apply and enforce their own laws. The report discusses the nature of federal preemptions and identifies preemptive language in legislation considered by the 111th Congress; it also outlines the policy areas most affected by those proposed federal requirements and presents data about other preemptions CBO has identified since 2001.

Thanks to beSpacific for the pointer. EMM

Exhausting administrative remedies

From Harvey Randall's New York Public Personnel Law blog, another example of why "Exhausting administrative remedies" is really, really important.

Jardim v PERB, 265 AD2d 329

The Jardim case demonstrates the importance of exhausting one's administrative remedies before initialing litigation challenging an administrative determination.

A Public Employment Relations Board administrative law judge [ALJ] dismissed improper practices charges filed by Leroy Jardim. Jardim claimed that he had been subjected to disciplinary action as a result of his performing his union duties.

In effect, Jardim alleged that he had been disciplined for performing “protected activities” within the meaning of the Taylor Law -- an unfair labor practice. The ALJ decided that the disciplinary action had not been taken against him because of his union activities.

Jardim then filed a petition with a State Supreme Court [trial court] appealing the ALJ's determination. This proved to be a fatal procedural error. His petition was dismissed because the court determined that Jardim had not exhausted his administrative remedies. It seems that Jardim elected to file a petition appealing the ALJ's decision in State Supreme Court pursuant to Article 78 of the Civil Practice Law and Rules instead of filing his “exceptions” to the ALJ's ruling with PERB.

The Appellate Division, Second Department affirmed the lower court's ruling. The court said that “administrative review” was available to Jardim. Thus, the dismissal of his petition by the Supreme Court was appropriate.

The court pointed out that PERB's rules provided for such an administrative review, citing Section 204.10 [4 NYCRR 204.10] of the rules. Section 204.10(a) permits a party to appeal a determination by an ALJ to the board, provided such an appeal -- referred to as “exceptions” to the ALJ's determination -- is filed within 15 working days after the individual has received the ALJ's decision.

Section 204.10 (b)(4) of the rules requires the party filing exceptions to specifically state them in the appeal. Any basis for an exception to a “ruling, finding, conclusion or recommendation” made by the ALJ “which is not specifically urged is waived”.

"Doctor, it hurts when I do this." "So don't do that." EMM

Policy: Math gone bad

From Ben Trachtenberg (Missouri) on RegBlog, "How Bad Math at Federal Agencies Undervalues Human Life". Opening paragraphs:

As the United States Congress considers whether to codify cost-benefit analysis (CBA) requirements, federal agencies and observers of the regulatory process should recognize that existing CBA procedures systematically undervalue the benefits of regulation, causing widespread underregulation of environmental harms and other health hazards.

Federal agencies consistently undervalue the benefit of saving human lives in the future by failing to account for “health inflation,” the rate at which health care costs rise more quickly than prices of normal goods and services, and “wealth inflation,” the phenomenon by which residents of wealthy countries tend to get richer over time. The resulting undervaluation causes the agencies to underestimate the likely benefits of regulations, thereby causing agencies to forgo enacting some lifesaving policies.

EMM

Theory: Zaring on regulation by reputation

David Zaring posted a quick note on the Conglomerate blog, "Regulation By Reputation":

I just presented a paper with the above title at INSEAD.  The motivating question was how, and whether, reputation can act as a force multiplier in matters regulatory and legal.  It is often posited as such ...

Can reputation explain legal compliance and regulatory effectiveness? 

Sometimes it looks like a classic economist copout.  If you can't figure out why something is priced the way it is, just posit a pre-existing taste for it.  But I think there may be something to reputation, though it is like other hard-to-price phenomena - esprit de corps, social we feeling, for example - that we all know exist but don't easily lend to a dollars and sense analysis.

Anyway, that's what I was thinking during the talk, which built off Daniel Carpenter's reputation oriented study of the FDA.  If you've got good examples of the use of reputation in corporate law, do point me to them in the comments.

For links to INSEAD and Daniel Carpenter's study, go to Prof. Zaring's Conglomerate post. We will be waiting for the paper (hint, hint). EMM

Why many lawyers hate administrative law, and why those who don't hate it can make a good living

Harvey Randall discusses two recent New York Public Employment Relations Board ("PERB") decisions on his New York Public Personnel Law blog in "Not being familiar with the rules not a valid excuse for failure to follow procedures":

The [plaintiff] Association filed a representation petition with PERB's Director of Employment Practices and Representation. The Association wanted to have the Broome County Sheriffs PBA decertified and the Association designated as the collective bargaining representative for a unit consisting of supervisory officers.

PERB’s director of representation dismissed the Association's petition after finding that the “showing of interest” [SOI] simultaneously filed with its petition “did not include a description of the unit the Association alleged to be appropriate....” The section of the Association's SOI form to be used to describe the unit the Association sought to represent was blank. This, said the director, meant that the SOI was not “on a form prescribed by the director” and therefore did not meet the requirements set out in ...

The Association filed an exception to the director's ruling, contending that it had not been promptly notified of the deficiency and thus was prevented from correcting it in a timely fashion. ...

PERB sustained the director's determination. It said that the rules clearly set out the requirement. “A party who is ignorant of a requirement under the Rules is no differently situated than a person who is mistaken in his or her understanding of the meaning or application of the Rules.” ...

Commenting that it applies its rules strictly, “especially the Rules pertaining to showing of interest requirements,” PERB sustained the director's dismissal of the Association's representation petition.

In civil court practice, parties are usually given a chance to amend their pleadings if the court finds an error that gets them tossed out of court. Administrative agencies generally don't have time for such mercy. The rules are public, and parties are expected to follow them. Period. Therefore, many attorneys don't like practicing before administrative agencies - they are not allowed to make mistakes. All the more business for the attorneys who can follow the rules. EMM

New administrative law article

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

• Note. A Chevron for the House and Senate: deferring to post-enactment congressional resolutions that interpret ambiguous statutes. 124 Harv. L. Rev. 1507-1527 (2011). [H]|[L]|[W]

EMM

Theory: Percival on Presidential authority

This issue is hitting the journals (see "Theory: Mendelson on Presidential authority", yesterday). Today we have Robert V. Percival (Maryland), "Who's in Charge? Does the President Have Directive Authority Over Agency Regulatory Decisions?", 79 FORDHAM L. REV. 2487 (2011). Abstract:

After describing three principal views on whether the President has directive authority, this Article discusses the constitutional foundations of this debate. It then reviews the history of presidential oversight of agencies and its implications for the debate over directive authority. The Article concludes by explaining why, even if the President has unfettered removal authority over the heads of non-independent agencies, it matters that this removal power does not imply the power to control decision making entrusted by law to agency heads.

EMM

Statutes of limitations

In administrative matters, getting the case filed on time is important because statutes of limitations are strictly interpreted. And they can be complicated. Different limitations can overlap, there may be notice requirements, the agency may have to take some action in response to notice or otherwise, and the statute may start to run at a less than intuitive point in time. This is illustrated in a case described by William W. Abbott on the Abbott & Kindermann Land Use Law Blog in "Legal Challenges to Land Use Decisions Governed By Strict Statutes Of Limitation, Including Those Based Upon Non Compliance with the Housing Element Requirements":

... A recent decision of the Fourth Appellate District illustrates the overlapping and potentially conflicting application of the various statutes. Haro v. City of Solano Beach (2011) ____ Cal.App.4th ____.

The chronology begins with the City of Solano Beach submitting a draft housing element to the Department of Housing and Community Development. The Department found the element in compliance, subject to approving an application for a site referenced as Site 8 in the Housing Element for 131 units, including 13 affordable units, and successful implementation of a Housing Element policy to encourage residential capacity in mixed-use developments. In the following year, the City processed an application for Site 8, and after a number of public hearings, directed the applicant to revise the project design based upon inconsistency with local zoning and specific plan requirements. As a result of not obtaining project approval by a grant deadline, the project did not qualify for a 6 million dollar grant, and became financially infeasible. Roughly 2 months later on July 8, 2008, the plaintiffs gave notice to the City that failure to approve the Site 8 project violated its housing element. On August 27, 2008, the City Council adopted [a resolution retaining outside legal counsel ... On September 2, 2009, the plaintiffs filed a complaint and writ of mandate. The petitioners presented eight causes of action, all linked to alleged compliance with various requirements of state affordable housing requirements applicable to planning, zoning and land development laws. The City responded by filing a demurrer, arguing that the claims were barred either by the 90 day provisions of ... [the] Subdivision Map Act or alternatively ... 1 year [for] housing element challenges. ... The trial court ruled for the City ...

On appeal, the Fourth Appellate District ruled for the City on the statute of limitations grounds ... The Court’s ruling on the statute of limitations focused on [the section that] was most favorable the plaintiffs. Litigation under this code provision first requires the future plaintiff to give written notice to the city or county before it files suit. The code then provides that the cause of action accrues “60 days after notice is filed or the legislative body takes final action in response to the notice, whichever occurs first.” A plaintiff then has one year from when the cause of action under housing element law accrues.  As pled, the complaint established that the City Council took action on August 27, 2008. This became the controlling date in calculating the statute of limitations and as a result, plaintiff’s complaint, filed on September 2, 2009, did not meet the one year requirement.

EMM

Is Admin Law important in the law school curriculum?

I have three questions for you, gentle readers, and for reasons I will explain below I express them in this strange way:

1. Is Administrative Law required in your school's J.D. curriculum?
2. What course currently required in your school's J.D. curriculum is less important than Administrative Law?
3. Why is it less important?

I suspect that I can safely infer that if you are reading this blog you believe Administrative Law is really, really important for lawyers. I think it is so important for most lawyers that an introduction to the field should be a required course in law school. But, of course I think so and you think so, but we are not the people who need to be convinced.

Back in the Jurassic Age, I attended a law school that had as its explicit purpose the education of lawyers for general practice. Administrative Law (2 semester hours) was required, and we all took it as 2Ls. I found it vital in my subsequent practice, and many of my classmates were surprised to find it important in their practices. Many found the course boring and slept through it only to get a sharp wakeup call a few years later.

We know the reasons why Admin Law is important: Growth industry, more and more matters controlled by statutes and regulations, etc. But, again, we are not the people who need to be convinced. So I suggest we need to go on the offensive. Let other courses defend their relevance to the practice of law.

Your opinions, please. EMM

Job announcement: Associate Dean for Government Contracts Law, GW Law

Want to move to the hub of administrative law? From Steve Schooner (GWU):

Here at GW Law School, we're advertising for a subject-matter dean for our (frankly, wonderful) Government Contracts Program. ... The formal advertisement is here:

https://www.gwu.jobs/postings/3820

EMM

Theory: Mendelson on Presidential authority

New on SSRN: "Another Word on the President's Statutory Authority Over Agency Action" by Nina A. Mendelson (Michigan), 79 FORDHAM L. REV. 2455 (2011). Abstract:

Several scholars, most recently and extensively Kevin Stack of Vanderbilt, have argued that statutes authorizing action by the “Secretary” or “Administrator,” without mention of the President, are properly read to deprive the President of directive authority over those executive officials’ decisions. Some have argued that reading delegations to a “Secretary or “Administrator” to authorize direction by the President would detrimentally affect an agency official’s willingness to resist presidential pressure, even though it would not affect the President’s formal power to remove the official. This short symposium essay responds by presenting more detailed evidence on several aspects of the interpretive question. It argues, consistently with the 2001 position of then-professor, now Justice, Elena Kagan, that outside of independent agencies, the choice of terminology does not communicate any particular congressional intent regarding presidential directive authority, at least with respect to executive branch agencies. Instead, a statutory delegation to the President, rather than to a “Secretary” or “Administrator,” seems best understood as Congress conveying the power to the President to choose which executive branch official will be primarily responsible for implementing that delegation, and delegations to the “Secretary” or “Administrator” as restricting that choice. The essay then comments that the interpretive question may not make that much difference to agency resistance to presidential supervision. It concludes with some observations on the normative debate over presidential control of executive agency decision making and calls for greater disclosure of the content of that control.

EMM

New Federal regulations for Summer sun

Usually we don't post about specific regulatory matters here, but this is appropriate for summertime (especially here in the Valley of the Sun).

Michael White has posted "Sunscreen Rules on the Way" on the OFR Blog:

The Food and Drug Administration has released new sunscreen labeling rules and proposed rules.  The FDA’s current sunscreen regulations date from the 1970s. According to the Wall Street Journal, the sunscreen industry had $687.5 million in sales in 2010.  The final and proposed standards will be published in the Federal Register on Friday, June 17, 2011.

Thanks to Rob Hudson (my boss) for the pointer. EMM

Bibliography on legal education

From Gerry Hess (Gonzaga) at the Institute for Law Teaching and Learning, "Article of the Month" for June 2011:

Donald J. Kochan, "Learning" Research and Legal Education: A Brief Overview and Selected Bibliographical Survey, 40 SOUTHWESTERN LAW REVIEW 449 (2011).

"At its core, education is about learning. Every educator, legal or otherwise, must at the same time be both a teacher and a student in the learning enterprise. Luckily, there is a wide literature to help us in these roles and it is growing every day. It should be a goal of every legal educator to appreciate this area of scholarship, understand its breadth and importance, and engage with it in our teaching and writing."

That challenge begins Professor Kochan's helpful article. In it he surveys the literature and provides citations to leading books, journal articles, and web resources in the following areas:

• Learning in general and in law school specifically
• Teaching in law school
• Legal research and writing
• Thinking like a lawyer
• How to succeed in law school.

The literature on teaching and learning is vast. Professor Kochan provides a user-friendly introduction to a slice of that literature. This article will help guide law teachers who want to locate resources to improve their teaching and their students' learning. In addition, Professor Kochan provides an efficient overview of this field for anyone seeking to explore topics in depth and to contribute to the scholarship of teaching and learning.

Lexis. WestlawNext. Not yet available on HeinOnline.

EMM

Theory: Agency-Specific Precedents and response

Richard E. Levy (Kansas) & Robert L. Glicksman (GWU), "Agency-Specific Precedents", 89 TEXAS L. REV. 499 (2011). Abstract:

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.

Response: Kristin E. Hickman (Minnesota), "Agency-Specific Precedents: Rational Ignorance or Deliberate Strategy", 89 TEXAS L. REV. SEE ALSO 89 (2011). Abstract:

Administrative law scholars have debated the seeming paradox of a field with general legal principles applied to a diverse group of agencies.  Professor Hickman responds to Professors Levy and Glicksman's observation that judges tend to identify precedents from separate agencies, although this is problematic.  These precedents, according to Levy and Glicksman, arise from attorney specialization, an inability of attorneys to expand their knowledge to other areas, and an inability of judges to compensate for incomplete briefing.

While recognizing the validity of Professors Levy and Glicksman's observation, Professor Hickman observes that this picture is incomplete and that the underlying causes of deviations from general principles are likely myriad. In particular, she argues that attorneys in some cases may have entirely rational and deliberate reasons for their limited briefing.

Drawing on her background in tax law, Professor Hickman argues, that both deliberate strategy and rational ignorance explain deviations from general principles of administrative law in tax regulation.  However, recent cases suggest some movement toward the Levy and Glicksman model of uniformity.

EMM

 

Theory: Merrill on Origins of American Judicial Review

Thomas W. Merrill, Article III, Agency Adjudication, and the Origins of the Appellate Review Model of Administrative Law, 111 COLUM. L. REV. 939 (2011). Abstract:

American administrative law is grounded in a conception of the relationship between reviewing courts and agencies modeled on the relationship between appeals courts and trial courts in civil litigation. This appellate review model was not an inevitable foundation of administrative law, but it has had far-reaching consequences, and its origins are poorly understood. This Article details how the appellate review model emerged after 1906 as an improvised response by the U.S. Supreme Court to a political crisis brought on by aggressive judicial review of decisions of the Interstate Commerce Commission. Once the jerry-built model was in place, Congress signaled its approval, and an academic—John Dickinson—wrote a persuasive book extolling its virtues. As a result, the appellate review model became entrenched by the 1920s and eventually spread to all of administrative law. The early adoption of the appellate review model helps explain why the Supreme Court never seriously grappled with Article III problems created by the widespread use of administrative agencies to adjudicate cases once the New Deal and the expansion of the administrative state arrived. It also helps explain why the judiciary has played such a large role in the development of administrative policy in the United States relative to other legal systems.

The author is the Charles Evans Hughes Professor of Law at Columbia Law School. EMM