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News, scholarship, and other items related to administrative law
Updated on 2009-12-25
Created on 2009-10-02
Category: Government & Politics
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Labor’s Next Best Hope: NLRB Rulemaking « Talking Union
EFCA is currently stalled behind health care and climate change legislation, and nobody knows when it might actually be considered by Congress, much less if it will be enacted in anything like its present form. In the face of that legislative inaction, it may be that the best available solution is for the administrative agency with authority in this area, the National Labor Relations Board (NLRB), simply to impose some badly needed fixes.
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SSRN-Federal Administration and Administrative Law in the Gilded Age by Jerry Mashaw
"This article has a simple message. The standard history of the development of American Administrative Law is at best partial and in many respects incorrect. The national government of the United States was an administrative government from the very beginning of the Republic. Moreover, that administrative government then, as now, was both constituted and constrained by law. In short, America had a federal administrative law long before that field of law was either recognized or named."
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New Process Steel v. National Labor Relations Board - ScotusWiki
"Issue: Whether Section 3(b) of the National Labor Relations Act, 29 U.S.C. § 153(b), authorizes the NLRB to act when only two of its five positions are filled, if the Board has previously delegated its full powers to a three-member group of the Board that includes the two remaining members; does the NLRB have authority to decide cases with only two sitting members, where 29 U.S.C. § 153(b) provides that “three members of the Board shall, at all times, constitute a quorum of the Board”? "
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Federal Register Document Drafting Handbook
The Document Drafting Handbook is intended to help agencies prepare documents for publication in the Federal Register.
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SSRN-Chevron as a Canon, not a Precedent: An Empirical Test of what Motivates Judges in Agency Deference Cases by William Eskridge, Connor Raso
Legal scholars almost universally believe that federal judges defer to agency interpretations of statutes. The debate has therefore focused on when judges should defer and how judges should operationalize a deference regime doctrinally. Such normative debates about deference rest upon factual assumptions that have not been rigorously tested; drawing from the entire population of Supreme Court cases (1984-2006) our empirical finds that Supreme Court Justices do not generally afford deference precedents stare decisis effect, but that the policies underlying the major deference regimes do have bite at the Supreme Court level. We also find that judicial ideology affects the Justices’ applications of deference regimes but does not explain why different Justices prefer different doctrinal formulations; we advance the hypothesis that the Justices’ expressed preferences are genuine, but do not dominate ideology and other context based factors in actual cases. Deference regimes are more like canons of statutory construction, applied episodically but reflecting deeper judicial commitments, than binding precedents, pretty faithfully applied or distinguished. Our study suggests that most academic proposals to “reform” deference doctrines would have little or no bite at the Supreme Court level; more modest proposals to clarify such doctrines would probably be (modestly) helpful, however.
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Legal History Blog: Roscoe Pound and the Administrative State
Many legal historians find themselves face to face with Pound at some point in their research. For legal historians of the American administrative state, he is an inescapable presence because of the harshly critical report he published as chairman of the American Bar Association's Special Committee on Administrative Law in 1938.
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SSRN-Democratizing the Administrative State by Richard Pierce
Scholars have long questioned the political and constitutional legitimacy of the administrative state. By 1980, a majority of Justices seemed to be poised to hold that large portions of the administrative state are unconstitutional. In 1984, the Court stepped back from that abyss and took a major step toward legitimating and democratizing the administrative state. The Court instructed lower courts to defer to any reasonable agency interpretation of an ambiguous agency-administered statute. The Court based this doctrine of deference on the superior political accountability of agencies. Henceforth, politically-unaccountable judges were prohibited from substituting their policy preferences for those of politically-accountable agencies. The Court recognized that agencies are politically accountable to the people because they are subject to the control of the elected President. The Court's 1984 effort to democratize the administrative state has fallen far short of its potential because of temporal problems with the manner in which the Supreme Court defines and implements the deference doctrine the Court announced in 1984 and the other two doctrines that require courts to defer to agency interpretations of agency-administered texts. The most important of those deference doctrines is explicitly premised on the Court's understandable belief that policy decisions should be made by the politically accountable President rather than by politically unaccountable judges. Yet, the Court's present method of implementing the deference doctrines has two unfortunate effects. First, in a high proportion of cases, there is a lag of four to eight years between the time that a President takes office and the time when a court is willing to acquiesce in implementation of the policies preferred by the President. In other words, each President is required to implement the policies preferred by his predecessor for at least one term and perhaps even for two terms. Second, in some important situations, regulatees are required to incur large c
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Administrative Law Prof Blog: Judicial review: When collateral estoppel bars a second bite
Sometimes an individual, unsuccessful in one lawsuit, will commence another legal action involving essentially the same issues and parties. However, applying the doctrine of collateral estoppel prevents a party from relitigating an issue which has already been decided by the courts involving the same parties and issues. ... [T]he doctrine may apply to bar relitigating issues decided by administrative agencies if those decisions are "quasi-judicial" in nature. According to the ruling, an administrative agency is quasi-judicial in nature if it is given express statutory authority to act adjudicatively.\nIn contrast, if an agency only invokes its executive powers under the governing statute in making its determination, it is not exercising "quasi-judicial powers." ... [C]hallenging the administrative agency's decision in court in situations where the agency did not arrive at its decision as a result of its acting in an adjudicative or judicial capacity would not be barred under the doctrine of collateral estoppel. ...
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SSRN-Disclosing 'Political' Oversight of Agency Decision Making by Nina Mendelson
Scholars and courts have been divided on whether presidential supervision enhances the legitimacy of the administrative state. For some, that the president can supervise administrative agencies is key to arguing that agency action is legitimate, because t
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SSRN-Administrative Law in the Roberts Court: The First Four Years by Robin Craig
Given Justice David Souter’s retirement in the summer of 2009, the four U.S. Supreme Court terms that began in October 2005 and ended in June 2009 constitute a first distinct phase of the Roberts Court. During those first four terms, moreover, the Court decided a number of cases relevant to the practice and structure of administrative law. This Article provides a comprehensive survey and summary of the Supreme Court’s administrative-law-related decisions issued during this first phase of the Roberts Court. It organizes those decisions into three categories. Part I of this Article discusses the Supreme Court decisions that affect access to the federal courts, covering issues such as standing, jurisdiction, causes of action, statutes of limitation, and exhaustion of administrative remedies. Part II presents the Roberts Court cases that have addressed federalism and the Supreme Court’s role in defining the relations between and the respective authority of the state and federal governments, including the imposition of Due Process requirements on states, dormant Commerce Clause limitations on states, federal preemption of state law, and the increasing role of federalism concerns as a factor in the Court’s statutory interpretation. Part III summarizes those decisions that give insights into the Robert Court’s perspective on the “proper” role of the federal courts in a tripartite federal government, covering issues such as constitutional interpretation, the Court’s interactions with Congress, federal court review of federal agency actions, and Chevron deference. While acknowledging that these decisions do not allow for any absolutely consistent principles to be discerned, this Article nevertheless concludes that a strong majority of the Justices are quite comfortable with the Court’s roles as constitutional interpreter and as constitutional mediator between governments and citizens and between states and the federal government. However, an admittedly weaker majority also otherwise prefers to defer to other branches of g
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