Recent Articles of Interest

Articles

Botein, Judicial Review of FCC Action, 13 Cardozo Arts & Ent. L. J. 317 (1995). With the advent of the so-called "information superhighway" and possible substantive amendments to the Communications Act, and because the Federal Communications Commission has faced relatively few changes in its enabling statute during the last sixty years, some have suggested that the time may be ripe to refine and rationalize the FCC's appellate procedure. Professor Botein suggests that judicial review of FCC action is a bit more complex than that of other regulatory agencies, the greatest difficulty being getting into an appellate court in the first place. First, the dividing line between "appeals" of licensing decisions and "petitions for review" of other actions sometimes is less than clear. Second, it is sometimes difficult to identify the proper document on which to base judicial review, and thus the appropriate timing of review. While conceding that the FCC's present system does have some flaws and inconsistencies, Professor Botein concludes that it may make sense to leave it unchanged until the form of substantive developments in emerging communications solidifies. At this relatively early point, no major changes appear to be necessary.

Dauber, The Ties That Do Not Bind: Nonbinding Arbitration In Federal Administrative Agencies, 9 Admin. L. J. Am. u. 165 (1995). Alternative Dispute Resolution (ADR) is a term that describes cooperative problem solving methods, such as arbitration. Recognizing the need for ADR within the federal agencies, Congress enacted the Administrative Dispute Resolution Act. The ADR Act authorizes and encourages administrative agencies to implement ADR techniques voluntarily, rather than pursue traditional litigation to solve conflicts. This comment focuses primarily on the use of arbitration provisions in the ADR Act. Certain of these provisions permit the agency to arbitrate as long as the agency head may either terminate an arbitration proceeding or vacate an arbitration award within thirty days of the decision. Consequently, a participant in an agency arbitration unexpectedly may find herself without the arbitrator's award if the agency head chooses to vacate the decision. The effect of these provisions is, in the authors opinion, not unlike standing over a trap door that appears to be on solid ground, but may disappear at any moment. Ms. Dauber argues that these provisions raise concerns about due process, the absence of legal precedent, the power of the arbitrator or"neutral," judicial review, and policy considerations. While Ms. Dauber believes that the ADR Act has put federal administrative agencies on the path to a more efficient method of dispute resolution, she concludes that Congress should do more to compel ADR programs in federal agencies.

Fitzpatrick, The Choice Between Adjudication And Rulemaking For Developing Administrative Policy In Pennsylvania, 4 Widener J. Pub. l. 373 (1995). Although the federal law is clear that an agency's choice to develop policy via rulemaking or adjudication will be reversed only for an abuse of discretion, state law on this issue is less clear. Two of the most vexing questions of administrative law in Pennsylvania are these: When may an agency establish new policies via adjudication, and when, if ever, may a reviewing court compel the agency to use rulemaking instead of adjudication to establish such policies? In this article, Mr. Fitzpatrick reviews federal and Pennsylvania law on this issue. After reviewing the case law, the author examines balancing factors used in the abuse of discretion test and suggests an approach for Pennsylvania courts to take when confronting these questions.

Lee, Twentyfive Years After Goldberg v. Kelly: Traveling From The Right Spot On TheWrong Road To The Wrong Place, 23 Cap. U. L. Rev. 863 (1995). In this article, Professor Lee examines the procedural due process "revolution" that developed in the 1970's beginning with the Supreme Court's decision in Goldberg v. Kelly, 397 U.S. 254 (1970). The article addresses the state of procedural due process before the revolution, and considers how Goldberg began that revolution. Professor Lee also looks at the cases following Goldberg: first, those that took advantage of the new freedom Goldberg had set in motion; second, those that sought to settle on a final test; and third, those that signaled what that test might become. In the end, the Supreme Court settled on a balancing test for procedural due process analysis that, as the author contends, was probably neither the best nor the worst of the tests considered. Yet, Professor Lee concludes, what matters is not the answer reached but the commitment to finding the right answer.

Martin, Preclusive Effect Of Factual Determinations Of The International Trade Commission With Regard To Patent Matters, 62 U. Chi. L. Rev. 885 (1995). One of the powers Congress granted to the International Trade Commission was authority to block the importation of products that infringe on valid United States patents. This power often requires the ITC to determine whether the patent itself is valid. However, Congress also granted federal district courts original and exclusive jurisdiction over cases arising under the United States patent laws. Therefore, there are two forums that may determine patent validity, raising the question of whether one forum's determination will have a preclusive effect over the other. For a court to grant preclusive effect to an administrative agency's decisions, the agency must follow procedures that are sufficiently similar to those of traditional judicial bodies. In this article, Mr. Martin asserts that while Congress intended to deny preclusive effect to legal determinations of the ITC involving patent issues, it did not intend to deny preclusive effect to factual determinations of the ITC involving these issues. Because the ITC follows procedures that are substantially similar to those of district courts, Mr. Martin concludes, those courts should grant preclusive effect to the factual determinations of the ITC with regard to patent matters.

Noah, Sham Petitioning as a Threat to the Integrity of the Regulatory Process, 74 N.C.L. Rev.1 (1995). In this article, Professor Noah examines the problem of "sham petitioning," the improper use of administrative procedures by firms in various industries seeking to delay or prevent entry into the market by would-be competitors. Noting that the Federal Trade Commission is investigating this problem, the author argues that a strategy relying upon federal antitrust laws is ineffective in the face of the broad constitutional right to petition invoked by firms making manipulative regulatory submissions. Instead, the author proposes modifications of agency procedures to effect direct curtailment of unfair delaying tactics. Professor Noah concludes that only when agencies take greater responsibility for controlling abuses of administrative proceedings will incumbent firms be stymied in their efforts to misuse administrative processes to inhibit lawful market entry by their rivals.

O'Reilly & Berg, Stealth Caused by Sunshine: How Sunshine Act Interpretation Results in Less Information for the Public About the Decisionmaking Process of the International Trade Commission, 36 Harv. Int'l. L. J. 425 (1995). The Government in the Sunshine Act is designed to compel federal multi-member agencies to open for public observation almost all discussion of agency business conducted by a quorum of the agency, subject to certain exemptions. Historically, the International Trade Commission (ITC) has interpreted the Sunshine Act as forbidding its six commissioners from collectively deliberating in private. In this article, the authors analyze the applicability of the Sunshine Act's Exemption 10, the exemption for an agency's initiation, conduct, and disposition of adjudications, to ITC intellectual property, antidumping, and countervailing duty investigations and conclude that the exemption properly does apply to the ITC. The article also sets out other options that, the authors believe, would allow the ITC to deliberate in closed session.

Schotland, ReExamining the Freedom of Information Act's Exemption 8: Does it Give an Unduly "Full Service" Exemption for Bank Examination Reports and Related Material?, 9 Adman. L. J. Am. U. 43 (1995). The Freedom of Information Act's Exemption 8 provides that FOIA disclosure provisions "do not apply to matters that are. . . contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions." Since the recent costly problems with many savings and loans and banks, it has been argued that the public interest requires fuller disclosure of examination report information both to provide the public with more complete information about problem situations and to increase the accountability of banking regulators. Despite these arguments, Professor Schotland's answer to the question he poses in the title is "No." Professor Schotland concludes that given all the information publicly available on banks and on their regulation, and given the detailed quality of exam reports and similar information, there is neither the need for a FOIA free of Exemption 8 to enhance accountability nor a likelihood that repeal would enhance credibility. In fact, Professor Schotland argues that amendments to Exemption 8 would likely bring about undesired problems. Assuming that Exemption 8 is not amended, Professor Schotland offers some suggestions for improving the functioning of the exemption, such as avoiding broad applications of the exemption, experimentation with non-FOIA disclosure of information covered by Exemption 8, and the creation of an interagency multimember appeals panel for FOIA requests denied on the basis of Exemption 8.

Schwartz, Privacy and Participation: Personal Information and Public Sector Regulation in the United States, 80 Iowa L. Rev. 553 (1995). This article by Professor Paul Schwartz discusses the theory and practice of data protection in the United States compared to in Europe. In assessing the theory behind data protection, Professor Schwartz urges a shift in the paradigm from "the right to be left alone" to a "privacy as participation" model. This model "uses the law to create a structure within which personal data may be utilized while an individual's capacity for decisionmaking is respected." Decisionmaking encompasses both deliberative autonomy and deliberative democracy. Professor Schwartz outlines a legal structure to further this model and finds that European law suggests acceptance of this model. Examining American law, however, he finds that while it recognizes the value of privacy as participation, it does not reflect that paradigm in a coherent and comprehensive manner. This difference he attributes to the considerable defensiveness, if not hostility, that Americans exhibit toward state activism and administrative regulation.

Shapiro & Levy, Judicial Incentives And Indeterminacy In Substantive Review Of administrative Decisions, 44 Duke L. J. 1051 (1995). In an effort to explain why two landmark Supreme Court decisions, Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) and Motor Vehicles Mfrs. Ass'n. v. State Farm Mut. Ins. Co., 463 U.S. 29(1983), have failed as controlling standards, Professors Shapiro and Levy analyze the impact of judicial incentives on substantive review in administrative law. To account for this breakdown, Professors Shapiro and Levy offer a model of judicial behavior based on the "craft" and"outcome" components of judicial decisionmaking. By "craft" the authors mean the well reasoned application of doctrine to the circumstances of a particular case. "Craft" reflects the values of consistency with constitutional and statutory provisions and continuity with prior case law. "Outcome," on the other hand, focuses on the result in a given case and its implications for the parties and society as a whole, reflecting the values of justice and social utility as filtered through the judge's individual world view. Outcome orientation and craft norms may be consistent or inconsistent. If they are consistent, judges will decide cases in accordance with their preferred outcome. This orientation permits judges to maximize their ideological utility without sacrificing the respect that comes from following craft. If, however, craft and outcome are inconsistent, judges will tend to follow a craft orientation. Judges do so to avoid the loss of respect among fellow jurists, lawyers, and the public that comes from pursuing an outcome orientation that is inconsistent with craft. In light of these relationships, Shapiro and Levy propose that judges favor indeterminate craft norms in administrative law for two reasons. First, the utility of being outcome oriented is greater than in other legal areas. Second, there is less loss of respect from being outcome oriented if indeterminate craft norms are maintained. As a solution, Professors Shapiro and Levy recommend that Congress require courts to respond to a single, comprehensive series of specific questions that would address what the authors see as the two main sources of indeterminacy in current substantive review doctrine: vague scope of review standards and reliance on manipulable categories to define the appropriate scope of review. Professors Shapiro and Levy conclude that if Congress adopts more determinate standards, outcome oriented behavior by judges should decrease.

Steele, The Effect Of The Utah Administrative Procedures Act On The Standards Of Review For Final Administrative Agency Adjudications, 9 B.Y.U. J. Pub. L. 389 (1994). Perhaps the most difficult problem in administrative law is determining the amount of deference that courts should accord final administrative agency decisions. In this comment, Mr. Steele examines how the Utah Administrative Procedures Act (UAPA) addresses this problem. The comment looks at the standards of review used by the Utah courts before UAPA was enacted, how those court shave articulated the standards of review under UAPA, and the amount of deference Utah courts accord formal agency adjudications. Specifically, the UAPA replaced the court's standard of reviewing findings of fact and altered the way in which appellate courts determine the scope of agency action entitled to intermediate deference (as with mixed questions of law and fact. The overall effect, Mr. Steele concludes, will be a decrease in the amount of deference courts accord agency action.

Wolff, The Federal Advisory Committee Act And The Executive Privilege: Resolving The Separation Of Powers Issue, 5 Const. L. J. 1023 (1995). Courts and scholars have recognized that the President has a legitimate interest in maintaining the confidentiality of certain information obtained from aides, advisors, and advisory committees. Though not expressly granted in the United States Constitution, this executive privilege to receive confidential communications achieved a constitutional basis as a result of the Supreme Court's decision in United States v. Nixon, 418 U. S. 683 (1974). In 1972, however, Congress enacted the Federal Advisory Committee Act (FACA) to control the establishment and use of public advisory committees. FACA imposes public "oversight" of the use of advisory committees by requiring open meetings and public access to documents used in these meetings. In this article, Ms. Wolff suggests that, in regulating presidential advisory committees, FACA may encroach on the President's privilege of confidentiality. Specifically, Ms. Wolff argues that because FACA has the effect of inhibiting the President's ability to organize and obtain advice from his advisors, application of FACA to advisory committees that formulate and present advice and recommendations to the President when he is exercising a constitutional function is a violation of the separation of powers. The solution, in her opinion, is to amend FACA to include an exemption from FACA's openness and document disclosure requirements for advisory committees that formulate policy or present advice to the President. This exemption would be limited to those situations in which the President consults a committee in furtherance of his constitutionally assigned functions.

Book Reviews

Croley, Making Rules: An Introduction, 93 Mich. L. Rev. 1511 (1995). In this article, Professor Croley reviews Rulemaking: How Government Agencies Write Law and Make Policy, by Cornelius M. Kerwin. Professor Croley finds Rulemaking not only a helpful introduction tothe "hows" and "whys" of rulemaking, but also a significant contribution to the scholarly literature on the subject. Perhaps more importantly, Professor Croley suggests, Kerwin stresses a need for legal scholars to compliment their understanding of rulemaking by integrating the social scientists' methodological tools in the pursuit of better understanding how rulemaking works and how it might be made to work better. It is this "happy marriage" of law and social science that the reviewer believes reveals something about what the most fruitful future work in the field might look like.

Funk, Beyond Casebooks, Beyond Treatises: Administrative Law Readers, 9 Ad. L. J. Am. Univ. 361 (1995). Professor Funk reviews Administrative Law Anthology and Foundations of Administrative Law, two administrative law "readers," collections of law review articles and book selections, one by Professor Thomas Sargentich and one by Professor Peter Schuck. Professor Funk notes that while both would appear to cover the same ground, of the 95 articles in the two books, only five appear in both. This he explains in part by their difference in purpose and approach, with Schuck eschewing doctrinal writings in favor of contextual writings those that explain the context of administrative law rather than the "law" itself. Professor Sargentich's selections, on the other hand, address current issues in administrative law, many of which are doctrinal in nature.

Collections

15 J. Nat. Assoc. Admin. Law Judges (Fall 1995). This issue provides information on how states with central hearing agencies function. The lead article by Julian Mann, III, focuses on how administrative adjudication can follow the principles and practices that have proven so effective in court management. ALJ Christine McKenna Moore's speech on the "Evidence for Administrative Law Judges" follows, demonstrating how important it is for Administrative Law Judges to understand not only the Rules of Evidence but the principles behind those rules. The next article is taken from another speech, this one by ALJ Charles Bono. Judge Bono explores the history of the evolution of the role of administrative law judges, giving his "insiders" view of the various developments over the years. The final article is the Model Code of Judicial Conduct for State Administrative Law Judges adopted unanimously by the National Conference of Administrative Law Judges of the Judicial Administration Division of the American Bar Association.

Survey

LeDuc, Michigan Administrative Law: Abridged Edition, A Michigan Administrative Law Primer, 12 T.M. Cooley L. Rev. 21 (1995). Professor LeDuc offers a primer that summarizes the principles and emphasizes the major aspects of Michigan administrative law. As an abridged version, this primer does not provide in-depth analysis of the topics or cases, but rather attempts to summarize critical administrative law concepts, such as Rules and Rulemaking, Informal and Formal Adjudication, and Scope and Methods of Judicial Review of Agency Action.