Recent Articles of Interest

Articles

Scott Boyd, How the Exception Makes the Rule: Agency Waiver of Statutes, Rules, and Precedent in Florida, 7 St. Thomas L. Rev. 287 (1995). The rise of the administrative state has brought new complications to the quest for justice. Legislatures have broadly delegated both "quasi-legislative" and "quasi-judicial" powers to administrative agencies. However, legislatures rarely delegate powers which might be termed equitable; agencies infrequently recognize when they are in fact utilizing equitable power; reviewing courts seldom seem to consider that agencies may not have equitable options available to them. In this article, Mr. Boyd examines the exception, an area of Florida law that has traditionally been associated with equitable principles. Exceptions are considered in three groups: exceptions to statutory rules, exceptions to agency's own rules, and exceptions to administrative precedent. In each section, the author examines the various constitutional, statutory, and judicial doctrines which either confirm or constrain the discretion of the agency. The author finds that generally there are constitutional prohibitions to the waiver of statutes, complex procedural restrictions of the waiver of rules, and simple procedural requirements for the waiver of precedent. Since Florida law grants administrative agencies limited authority to grant exception in statute and rule, Mr. Boyd concludes that further attention to waiver authority in these categories may be needed to achieve the appropriate equitable balance.

Richard Cudahy, PURPA: The Intersection of Competition and Regulatory Policy, 16 Energy L. J. 419 (1995). The Public Utility Regulatory Policies Act of 1978 has two main goals: energy conservation and diversification of generating resources. Section 210 of PURPA in particular requires utilities to purchase and sell electricity from and to certain cogenerators and small power producers at the "full avoided cost." Opponents of section 210, however, believe that unconstrained competition in the market for electricity will best achieve PURPA's goals, thus making section 210 redundant. Judge Cudahy suggests an alternative view: that the values advanced by PURPA cannot be achieved by unrestrained competition alone. In this article, the author provides an analysis and assessment of the historical and continuing evolution of the energy problems that PURPA was designed to alleviate. Specifically, the author examines the recent action of FERC disapproving a PURPA order to the California Public Utility Commission requiring certain utilities to purchase PURPA capacity at prices they believed too high. Judge Cudahy concludes that even if modifications of PURPA are in order, the basic policy objectives should not be abandoned because conservation and diversification of energy resources are still important.

John Fennelly, Non-delegation Doctrine and the Florida Supreme Court: What You See is not What you Get, 7 St. Thomas L. Rev. 247 (1995). Judge Fennelly asserts that the Florida Supreme Court is utilizing two mutually exclusive doctrines to determine the permissible extent of legislative delegation to administrative agencies. In an attempt to resolve this inconsistency, Judge Fennelly examines the two doctrines in the context of the administrative state which gave rise to the doctrinal debate. The classical or structuralist model requires legislative delegations to be accompanied by clear standards limiting administrative discretion. This non-delegation doctrine, Judge Fennelly argues is supported by the Florida Constitution which requires the legislature, as opposed to administrative agencies, to legislate. The proceduralist model, on the other hand, eschews standards and opts for a process check on administrative power. Judge Fennelly concludes that the procedural model must be rejected in favor of the structuralist model, because the procedural model results in negative consequences, including the rise of interest groups, the abdication of legislative responsibility, and the abandonment of the rule of law in contemporary government.

Elaine Golin, Solving the Problem of Gender and Racial Bias in Administrative Adjudication, 95 Colum. L. Rev. 1532 (1995). Recent studies suggest that there may be extensive gender and racial bias in administrative benefits adjudications. This note focuses on benefits adjudications conducted by Social Security Administration ALJs because, to date, the relevant studies and litigation have concerned those hearings. Ms. Golin argues that the existence of bias threatens to undermine public confidence in the fairness of the administrative hearing procedure, and thus is contrary to Congress's purpose in enacting the APA. Therefore, she addresses possible judicial and administrative remedies for bias in administrative adjudications. The author reviews and critiques remedies for bias that are currently available, as well as the relevant provisions of the proposed reorganization of the Federal Administrative Judiciary Act. Ms. Golin advocates an active role for Article III judges in addressing bias and suggests the implementation of carefully structured agency complaint resolution procedures that incorporate the perspectives of ALJs, claimants, and agencies.

Arne Leonard, When Should an Administrative Enforcement Action Preclude a Citizen Suit under the Clean Water Act?, 35 Nat. Resources J. 555 (1995). By interpreting the Clean Water Act's administrative penalty provisions as a bar to citizen suits under almost all circumstances, the Courts of Appeals for the First and Eighth Circuits have imposed a major restriction on citizen enforcement against water polluters. After analyzing the legislative history, administrative interpretations, and case law concerning the relationship between the CWA's citizen suit and administrative penalty provisions, Mr. Leonard argues that the First and Eighth Circuits' interpretation should be rejected. To help achieve this goal, Mr. Leonard suggests amendments to the CWA's administrative penalty provisions and informs federal, state, and citizen prosecutors of procedures they can employ to deter water polluters successfully without infringing upon one another's efforts.

Simon M. Lorne and W. Hardy Callcott, Administrative Actions Against Lawyers Before the SEC, 50 The Business Lawyer 1293 (1995). Since the early 1980s, the Securities and Exchange commission has largely avoided bringing administrative proceedings against lawyers. Two recent developments, the passage of the Securities Law Enforcement Remedies Act of 1990 and the United States Supreme Court's 1994 Central Bank decision, challenge the SEC's ability to maintain this practice of prosecutorial restraint. This Article discusses the situations in which the SEC should bring administrative proceedings against lawyers, the situations in which lawyers' clients have an interest in a zealous representative that should counsel the SEC to challenge attorney misconduct only before an Article III federal judge, and the practical constraints that sometimes may encourage the SEC to consider administrative proceedings to be a preferable forum.

John McGinnis and Michael Rappaport, The Constitutionality of Legislative Supermajority Requirements: A Defense, 105 Yale L.J. 483 (1995). In this essay, Professors McGinnis and Rappaport defend the constitutionality and wisdom of the House of Representatives' rule requiring a three-fifths majority to pass an increase in income tax rates. The authors argue that the constitutional text demonstrates that Congress, acting by majority vote under its explicit rulemaking authority, may require supermajorities for votes on specific legislation. Further, the constitutionality of the rule is supported by evidence of the Framers' original intent to frustrate legislative majorities and promote other values. Professors McGinnis and Rappaport conclude that in addition to being constitutional, the three-fifths rule for income tax increases is also good policy, because it substitutes a procedure supported by a popular majority to counter the effects predicted by public choice theory, that multiple special interest groups will each obtain legislative majorities sufficient to further their purposes at the expense of the popular majority.

Paul McGreal, Some Rice with your Chevron?: Presumption and Deference in Regulatory Preemption, 45 Case W. Res. L. Rev. 823 (1995). This article examines the Supreme Court's treatment of regulatory preemption in light of the unresolved tension between the Rice v. Santa Fe Elevator Corp. presumption against preemption and the Chevron, U.S.A. Inc. v. NRDC deference to agency interpretations of law. The collision between presumption and deference occurs when an administrative agency interprets an ambiguous statute to preempt state law; should the presumption trump Chevron or should the ambiguity of language allow agency interpretation of preemption? Mr. McGreal argues that the Supreme Court's decisions on federalism, separation of powers, federal common law, and administrative law develop a jurisprudence that supports preemption by agency interpretation. First, Rice indicates that the Court prefers deliberation upon actions that implicate federalism concerns. Second, Chevron indicates that the Court prefers that close questions in which the possibility of error looms large be decided by the most accountable decisionmaker. If the agency is allowed to assess whether preemption is called for, the principles of both deliberation and accountability will be satisfied.

Alfred Neely, Song in a Crabbed Key in Missouri, CIRCA 1994: The Judicial/Legislative Partnership in Administrative Law, 21 J. Legis. 275 (1995). Legislatures should think twice before repealing provisions of the administrative procedure act in reaction to particular cases in which a court's application of the act resulted in serious consequences against an administrative agency that failed to comply. When legislative bodies develop administrative procedure, the intended beneficiaries are the people that come in contact with agency rather than the agencies themselves. Professor Neely's article examines the Missouri legislature's specific correctives for judicial decisions concerning the applicability of Missouri Administrative Procedure Act to higher education and compliance with fiscal note requirements in rulemaking. The author argues that these amendments implicate issues of the legislature's relationship to the judiciary in control of agency action. In order for administrative agencies to be controlled effectively, the legislature and the judiciary must work together to enforce agency compliance with administrative procedures. Professor Neely concludes that once a legislative judgment is made that serious consequences will follow agency noncompliance, the legislature should not act to relieve the consequences once a court has found the agency in noncompliance.

Naomi Roht-Arriaza, Shifting the Point of Regulation: The International Organization for Standardization and Global Lawmaking on Trade and the Environment, 22 Ecology L.Q. 479 (1995). When policymakers and scholars think of global environmental rulemaking, they generally think of treaties and declarations of states. The public law model, based on state rights and obligations, has predominated global environmental regulation. Professor Roht-Arriaza examines an alternate model based on private standards and obligations. This private law model would focus environmental regulation on producers and products, rather than states, as the point of regulation. Producers are regulated using market-incentive and information-based strategies like taxes, tradeable permits, and eco-labels, rather than "command and control" approaches. In this article, the author considers the private environmental standards being developed by the International Organization for Standardization and the implications of these standards for national and international regulatory action. Professor Roht-Arriaza concludes that the model of private standard-setting and enforcement holds great promise, although the particular set of private environmental standards now under development is too limited in both genesis and scope to fulfill the potential of the model. To reach the full potential of the model, the author suggests that ISO include substantive standards, financial assistance, and delayed compliance schedules for smaller national industries.

Cass Sunstein, Problems with Rules, 83 Cal. L. Rev. 955 (1995). Many of the most difficult issues in law involve the choice between rules and rulelessness in cases where both seem unacceptable. The principal goal of this Article is to point the way toward a more refined understanding of the ideal of the rule of law, one that sees a degree of particularity, and a degree of lawmaking at the point of application, as important parts of that ideal. The article defends a form of casuistry and describes the potentially democratic foundations of the casuistical enterprise in law. It begins by describing the distinctive advantages of rules and law via rules, especially as a means for providing a consensus on what the law is from people who disagree on much else. It also discusses three attacks on decisions according to rules: the view that rules are excessively conservative; the view that controversial political and moral claims always play a role in the interpretations of rules, and thus that rules are not what they appear to be; and the view that rules are obtuse because they are too crude to cover the diverse human affairs, and because judges should not decide cases without closely inspecting the details of disputes. The Article suggests several ways to avoid the dilemmas posed by rules and rulelessness: (a) a presumption in favor of privately adaptable rules, that is, rules that allocate entitlements without specifying outcomes, in an effort to promote goals associated with free markets; (b) a recognition of legitimate rule revision, in which public officials and private citizens are allowed to soften the hard edges of rules; and (c) highly contextualized assessments of the virtues and pathologies of both options, in an effort to promote democratic goals of responsiveness and open participation.

Collections

15 Cal. Reg. L. Rep. Nos. 2 & 3, Spring/Summer 1995 contains a point/counterpoint on the California Public Utility Commission's Electricity Deregulation Proposals, as well as its usual update on litigation, legislation, and regulatory agency action.

Surveys

Administrative Law, 47 S.C. L. Rev. 1 (1995). This article reviews administrative law opinions rendered by the South Carolina Supreme Court during 1994.

Rebecca Watson, Administrative Law Survey: Transportation, 72 Denv. U. L. Rev. 549 (1995). During the 1994 survey period, the Tenth Circuit applied both the "substantial evidence" and "arbitrary and capricious" standards to review agency decision-making. This survey focuses on the Tenth Circuit's application of these standards in two transportation law cases, Board of County Commissioners v. Isaac, 18 F.3d 1492 (10th Cir. 1994) and Committee to Preserve Boomer Lake Park v. Department of Transportation, 4 F.3d 1543. In both cases, the Tenth Circuit deferred to agency expertise.

Wendy Rogovin, The Politics of Facts: "The Illusion of Certainty", This article analyzes the role played by facts in the process by which Congress makes law and the judiciary reviews those laws. Because little attention has been paid to this area by courts, Congress, and scholars, major federal legislation, including the Gun-Free School Zones Act of 1990, the Policy Concerning Homosexuality in the Armed Forces, and the Anti Car Theft Act of 1992, has been enacted without what the Supreme Court and some federal courts consider to be a proper factual foundation. Requiring that Congress articulate a factual basis for its legislation encroaches on its lawmaking autonomy. Yet, insulating the legislature from judicial review is tantamount to demanding that the judiciary abdicate its role as protector of the Constitution. To mediate the power struggle between Congress and the judiciary, this Article uses as an example the Gun Free School Zones Act of 1990 and the Supreme Court's decision in United States v. Lopez, holding that Congress exceeded its Commerce Clause power in enacting that statute. The Article provides evaluative criteria with which to assess methods of providing factual basis for legislation. By following these criteria, courts and Congress will moderate their respective functions while preserving the appropriate constitutional balance of power between the branches.

Mary Olson, Regulatory Agency Discretion Among Competing Industries: Inside the FDA, 11 J.L. Econ & Org. 379 (1995). Professor Olson's article develops a theoretical framework to analyze the variability in Food and Drug Administration approval decisions and to investigate agency discretion among competing industries, specifically those that produce new brand-name drugs, and medical devices. The theory empirically identifies key determinants of agency approval decisions. These determinants include the agency's budget, congressional preferences, and several proxies for industry and consumer interests. Results from the analysis suggest that the FDA's response to these determinants varies among the three different industries' approval activities. The pattern of variation implies that bureaucratic discretion is highest for the products with the greatest regulatory stringency. This variation in agency responsiveness further suggests that no single theory of regulation can explain the FDA's approval decisions among the three industries. Instead, analyses need to examine the relationship between specific agency actions and the set of interests that are predominately affected by these action.