Administrative Law Prof Blog

Revival of the Non-Delegation Doctrine?

From Jonathan Adler at The Volokh Conspiracy:

It is not very often that the non-delegation doctrine is raised in federal appellate litigation, and perhaps for good reason. The Supreme Court has not looked favorably upon a non-delegation challenge to federal agency action in decades. Yet in a recent case before the U.S. Court of Appeals for the D.C. Circuit, Michigan Gambling Opposition v. Kempthorne, the appellants pressed a non-delegation challenge to aspects of the Indian Reorganization Act (IRA), and actually managed to secure one judge’s vote.

See the rest at Judge Brown's Non-Delegation Doctrinal Revival.

EMM

McNeil on Perceptions of Fairness in Agency Adjudications

Chris McNeil (Capital) has posted "Perceptions of Fairness in Agency Adjudications: Applying Lind & Tyler's Theories of Procedural Justice to State Executive-Branch Adjudications" on bepress.  Abstract:

Under the U.S. Constitution, before the government may adversely affect liberty or property interests, the interest-holder is entitled to an administrative hearing or a trial. When fact-finding is transferred from the judicial branch by the legislative branch and is given to the executive branch, executive agencies are given the power to use tools that traditionally are wielded not by governors or presidents, but by judges. The result is an administrative fact-finding hearing, presided over by an administrative law judge (ALJ). This hearing uses someone who, on the one hand, is part of the executive branch, but on the other hand acts like a judge in the judicial branch. The executive-branch adjudicator tends to create the impression that because he or she is part of the executive branch of government, any decision rendered by the ALJ will be biased in favor of the executive branch, because the judge is not independent, and is part of the executive agency that brought the charges.

Applying principles of "procedural justice" examined first by Thibaut and Walker in the 1970s, and then by Lind and Tyler in the 1980s, this paper examines perceptions of fairness in ALJ adjudications. It uses results from field studies of participant perceptions of fairness in agency adjudication. This is a doctoral dissertation, supported by a grant from the National Science Foundation. The paper will report on the results of a national survey of litigants, defense lawyers, and ALJs, probing whether these stakeholders believe the hearings they participated in were fair.

EMM

Who Has the Most Influence on the Agency?

Arguably, the low-level managers have more effect on what the agency does and how it treats the constituent population than the high-level appointees, even though Admin law courses usually focus on the top personnel.  This will not be terrible surprising to practitioners who have experience with multiple offices of the same agency, of course.  Yesterday, at an event sponsored by the Partnership for Public Service, Univ. of Illinois-Chicago professor James Thompson explained that "front-line managers" have perhaps the most influence over day-to-day operations of the agency, and therefore should receive a heftier dose of leadership training, etc. This article summarizes the points well, mentioning specific agencies and their approach to training supervisors and managers.

-Dru Stevenson

Duke Law Journal: Call For Admin Papers

The prestigious Duke Law Journal has issued a call for papers for its 38th Annual Administrative Law Conference, celebrating the 25th Anniversaries of several of the leading Admin Law cases (Chevron, Chadha, Bowsher, etc.).

The deadline for submitting a prospectus (2,000 words) for proposed topics ia August 20, 2007.  The Conference itself is next February; final drafts of selected essays will be due in early January 2008.

-Dru Stevenson

Publishing Your Articles...

Many of us have read or participated in discussions about the mysterious process of article placement (our perspective - form the perspective of the editors, it's the process of article selection, of course). In case you have not already seen this, a new article posted on SSRN describes the results of a well-thought survey and offers some real answers:

Jason Nance and Dylan Steinberg, The Law Review Article Selection Process: Results from a National Study (May 19, 2007). Available at SSRN: http://ssrn.com/abstract=988847

Bottom Line, if I understand their results correctly: Journals behave as rational actors, preferring articles that will benefit them (increase their prestige via association with a celebrity prof or via widespread readership & citations; and decrease their workload in hunting down obscure sources or finding page numbers for cites in the footnotes).  Surprisingly less important are oft-attributed criteria of trendiness, length, or offers from other journals.  If you are not already famous, your best bet, it seems, is to convince the editors through your introduction (and cover letter) that your article is bound be cited a lot, bringing honor and glory to whatever journal is lucky enough to have published it.  Not that you should say it quite like that, but that's how they want to feel.  Unsurprisingly, the prestige of one's letterhead serves as a proxy for author reputation; but Nance and Steinberg contend that top-tier employment helps more than bottom-tier employment hurts.  I am still thinking about this apparent paradox.

The big unanswered question is what factors besides the ranking of your institution and previous placements might influence an editor's perception of your fame or importance in the field.  If the students recognize your name as an editor of one of their casebooks (or study aids?) does this count?  What if you are a BarBri lecturer?  Too late?

And this reminds me of the late great Boris Bittker.  My tax professor used to introduce emphatic statements with the line, "Boris Bittker Himself would say..." (he was still alive at the time). I remember hearing others add "Himself" after Richard Posner's name as well ("...Richard Posner Himself admits that ..." ). Eventually, I concluded that the honorific suffix "Himself" at the end of one's name was the academic equivalent of "the Great" for political leaders (as in "Alexander the Great" and "Peter the Great").  I never once hear "Boris Bittker" mentioned in law school as a stand-alone name; it was always "Boris Bittker Himself..."  I decided that the highest level of academic distinction would be to have everyone utter the suffix "Himself" (or Herself, of course) whenever they use the professor's name. 

Not sure this insight will help me place articles in better journals in the meantime, while I am just waiting to attain to the level of "Himself." 

-D.S.

Need Professional Announcements Info...

We would like to post announcements about lateral transfers or other major career moves for Admin Law professors around the country.  If you know of any that should be included, please forward the information to us (or post it in the Comments section) so we can have it on the site. 

We are also still looking for additional co-editors for this blog, as well as guest bloggers!

-D.S.