Administrative Law Prof Blog

Theory: The limits of 'collaborative regulation'

New on SSRN: "Disciplinary Deficit: Crisis, Collaborative Regulation and Political Economies" by Mark Findlay (Sydney). Abstract:

The paper explores the features and charts the principle theorizing of regulatory sociability from collaboration rather than intervention, whatever the interest-based motivation within crisis, towards orderliness. It concludes with a discussion of disciplinary deficit, in terms of the way that compulsory regulatory preference remains low on the orderliness continuum. We argue that as compulsory discipline increases, it may produce compliance but at costs for regulatory sociability. The alternative regulatory paradigm is one which moves to resolve the antimony between desire and reason in a manner which relies on and endorses the constituents of collaboration.

Collaborative regulation, the paper suggests, can arise out of crisis and be justified through desires for orderliness without compulsion. But for collaborative regulation to be sustainable it must complement certain positive ‘orderly’ aspects within political economy. The analysis determines some observations concerning the shape and shaping of collaborative regulation in an atmosphere of more pluralist knowledge based (disciplinary) engagement.

EMM

Agency interpretations of their own regulations

There seems to be a variety of judicial opinions about how much deference courts should give to an agency's interpretation of its own regulations, AKA Auer deference (after Auer v. Robbins, 519 U.S. 452 (1997). One argument is that deference is not warranted when the "interpretation" rises to the level of a new regulation without notice or an opportunity to be heard. Applebee's (the restaurant chain) has petitioned for the Supreme Court to take another look. Petition of the day : SCOTUSblog has links to both the Eighth Circuit opinion and the petition for certiorari. From the Eighth Circuit opinion:

These types of agency interpretations (opinion letters and handbooks) of its own regulation are not entitled to Chevron deference because they are not subject to notice and comment rule making procedures. Where the rule to be interpreted "is a creature of the Secretary's own regulations, [however, its] interpretation of it is, under [Supreme Court] jurisprudence, controlling unless plainly erroneous or inconsistent with the regulation." This type of Auer deference is appropriate for DOL interpretations of its own regulations, where the regulations "g[i]ve specificity to a statutory scheme the Secretary [of the DOL] [i]s charged with enforcing and reflect[] the considerable experience and expertise the Department of Labor ha[s] acquired over time with respect to the complexities of the Fair Labor Standards Act." ... Less deference is due an agency when, "instead of using its expertise and experience to formulate a regulation, it has elected merely to paraphrase the statutory language," in which case an agency's interpretation is "entitled to respect" to the extent it has the "power to persuade," (discussing Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). Nonetheless, "Auer deference is warranted only when the language of the regulation is ambiguous."

Slip op. at 8-9 (some citations omitted). One to watch. EMM

New administrative law article

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

• Finklea, Sam. Administrative & judicial review of DHEC environmental decisions. 18 Southeastern Envtl. L.J. 195-218 (2009-2010). [H]|[L]|[W]

EMM

Practice: Overbroad agency requests for information

One of the necessary powers of an agency entrusted with enforcement is inquiry--the power to demand information relevant to its regulatory responsibilities. When this is civil rather than criminal enforcement, Fourth Amendment limits do not apply or do not apply as strictly. However, due process rights still limit what information an agency can demand. An example is described in "Another Federal Court Refuses To Enforce Overly Broad EEOC Subpoena" by Brian Hall (Porter Wright, Columbus, Ohio) on his firm's Employer Law Report. Opening paragraph:

We previously have reported on the EEOC's increasingly aggressive agenda to expand the scope of its charge investigations by subpoenaing employer documents that far exceed any potential need. Fortunately, many federal courts have rejected these fishing expeditions. EEOC v. Loyola University Medical Center presents another good example.

This review is written from viewpoint of the regulated entity, and does not fully explain why the subpoena in this case is overbroad. Still useful, however. EMM

More on this case in "EEOC's Subpoena Thwarted, Despite Supposedly Time-Barred Response". EMM

 

Sources for the Federal Register and Code of Federal Regulations

We were doing some in-house legal research training the other day when the instructor asked me (as the local admin law wizard) what sources I used for the Fed. Reg. and C.F.R. Here is how I responded.

It depends a little on what I’m using them for. If I need pdf images, I use HeinOnline. Otherwise I usually use GPO Access/FDSys. If I am already in Lexlaw or Wexis I’ll stay in the database I’m in. Also, West has annotations for a few CFR titles. I haven’t used the [Cornell] LII [Legal Information Institute] versions. Good question.

Thanks to Alison Ewing of our staff for the question. What do you use, and why? EMM

Administrative law as a growth industry

An article by Brian Glaser in Corporate Counsel, "U.S. and U.K. Corporate Counsel See Less Litigation, More Regulation", reviews the 2011 Fulbright & Jaworski Litigation Trends Survey. Opening paragraph:

Law departments have looked into both their ledgers and their crystal balls, and have seen a little less litigation but a lot more regulation. These are the top-line results of the 2011 Fulbright & Jaworski Litigation Trends Survey, released this week; it is the latest installment of an annual survey of corporate counsel in the U.S. and U.K. conducted by Fulbright & Jaworski LLP.

As the scope of scientific and technical knowledge grows more and more rapidly, individuals become less and less able to comprehend the world around them (although many are not trying very hard). Accelerating increases in the flow of information to individuals makes them more and more aware of threats they cannot seem to control. Individuals are then demanding that somebody—the government—protect them from all these perceived threats. They want to be protected beforehand from potential injury rather than suing after they are hurt (although they are more than willing to do that). I suspect that defunding regulators will not so much reduce the amount of regulation but rather reduce the quality of regulation. EMM

New administrative law articles

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

• Aagaard, Todd S. Regulatory overlap, overlapping legal fields, and statutory discontinuities. 29 Va. Envtl. L.J. 237-303 (2011). [H]|[L]|[W]
• Brudzinski, Walter J. Coast Guard administrative proceedings in drug cases resemble the civil law tradition. 42 J. Mar. L. & Com. 159-183 (2011). [H]|[L]|[W]
• Cade, Jason A. Narrative preferences and administrative due process. 14 Harv. Latino L. Rev. 155-191 (2011). [H]|[L]|[W]
• Cox, Douglas. Burn after viewing: the CIA's destruction of the Abu Zubaydah tapes and the law of federal records. 5 J. Nat'l Sec. L. & Pol'y 131-177 (2011). [H]|[L]|[W]
• Fagan, Michael J., Jr. Comment. No trifling matter: forms, bulletins, and administrative rulemaking in Louisiana after ... (Gingles v. Dardenne, 4 So. 3d 799, 2009.) 71 La. L. Rev. 1305-1338 (2011). [H]|[L]|[W]
• Marashlian, Jonathan S., Jacqueline R. Hankins and Linda McReynolds. The mis-administration and misadventures of the Universal Service Fund: a study of the importance of the Administrative Procedure Act to government agency rulemaking. 19 CommLaw Conspectus 343-393 (2011). [H]|[L]|[W]
• Ross, Ezra and Martin Pritikin. The collection gap: underenforcement of corporate and white collar fines and penalties. 29 Yale L. & Pol'y Rev. 453-526 (2011). [H]|[L]|[W]
• Symposium. Modernizing Agency Practice: The 2010 Model State Administrative Procedure Act. 20 Widener L.J. 697-886 (2011). [H]|[L]|[W]
  • Gedid, John. An introduction to the 2010 Model State Administrative Procedure Act. 20 Widener L.J. 697-706 (2011). [H]|[L]|[W]
  • Asimow, Michael. Contested issues in contested cases: adjudication under the 2010 Model State Administrative Procedure Act. 20 Widener L.J. 707-739 (2011). [H]|[L]|[W]
  • Beal, Ron. Rulemaking: procedure as it relates to substance under the 2010 Model State Administrative Procedure Act. 20 Widener L.J. 741-799 (2011). [H]|[L]|[W]
  • Bell, Bernard W. The Model APA and the scope of judicial review: importing Chevron into state administrative law. 20 Widener L.J. 801-853 (2011). [H]|[L]|[W]
  • Levin, Ronald M. Rulemaking under the 2010 Model State Administrative Procedure Act. 20 Widener L.J. 855-886 (2011). [H]|[L]|[W]
• The (Not So) New Executive Order on Regulatory Review, and What to Expect. Roger Martella, moderator; Gary D. Bass, Susan Dudley, Michael L. Goo and Sally Katzen, panelists. 41 Envtl. L. Rep. News & Analysis 10505-10519 (2011). [H]|[L]|[W]
• Thomson, James B. Cleaning up the refuse from a financial crisis: the case for a resolution management corporation. 10 Fla. St. U. Bus. Rev. 1-23 (2011). [H]|[L]|[W]

Sorry for the delay. I've been away from my desk for the last two weeks. EMM