Friday, March 28, 2014
Cathy Sharkey (NYU) has posted to SSRN State Farm 'with Teeth': Heightened Judicial Review in the Absence of Executive Oversight. The abstract provides:
While courts and commentators have considered the information-forcing role of executive oversight and/or judicial review of agency action, the dynamic relationship between the two has yet to be considered. This Article presents a novel justification for heightened judicial scrutiny in the absence of meaningful executive oversight. Agency cost-benefit analyses and agency conflict preemption determinations — two realms rarely if ever considered together — are compared in terms of their underlying reliance on factual predicates and contrasted in terms of the existing framework for executive oversight and judicial review of agency determinations.
A heightened judicial review standard — what I term “State Farm with teeth” — should guide courts’ evaluations of the cost-benefit analyses performed by independent agencies not subject to executive oversight. My Article is the first to draw the distinction between independent and executive agencies in the State Farm “hard look” context. It is also the first to explore the recent Business Roundtable decision by the D.C. Circuit through this analytical lens.
The stringent “State Farm with teeth” standard should likewise be applied to judicial review of agency determinations of conflict preemption. This Article’s discussion of recent developments involving the Office of Comptroller of the Currency’s assertion of preemption of state banking laws shows why. This Article also points to a potential new information-forcing role for Congress. Using the Dodd-Frank Act as an example, this Article further shows how Congress can set parameters for judicial review of the fact-based conflict preemption determination on the part of an agency.