Recent Articles of Interest

ARTICLES

Jack Campbell, Revoking the Fishing License: Recent Decisions Place Unwarranted Restrictions on Administrative Agencies Power to Subpoena Personal Financial Records, 49 Vanderbilt L. Rev. 395 (1996). In light of recent decisions, the four-part Powell balancing test for judicial deference to agency investigative subpoenas appears to be losing favor with the courts in lieu of a return to more individualized balancing tests. In this article Mr. Campbell explores both why courts have moved away from deference to broad agency subpoena power and what the likely consequences are for the ability of agencies to fulfill their investigative functions. The most serious departures from the Powell [United States v. Powell, 379 U.S. 48 (1964)] test have been in the area of administrative subpoenas of personal financial records. Of late, courts are showing an inclination to focus upon the identity of the subpoena target rather than upon the nature of the requested document in their Fourth Amendment analysis. The author argues that such a distinction between the financial records of corporations and individuals is intellectually unsound and may force regulatory agencies into reactive rather than proactive investigation techniques. Courts are also showing a reluctance to give deference to agency subpoenas requesting financial information designed to determine the cost-effectiveness of enforcement actions. Mr. Campbell contends that such subpoenas are essential to setting a reasoned enforcement agenda and that there exists an inherent power to issue subpoenas to further such permissible investigative purposes.

Linda Cohen and Matthew Spitzer, Judicial Deference to Agency Action: A Rational Choice Theory and an Empirical Test, 69 S. Cal. L. Rev. 431 (1996). In this contribution to a symposium On Positive Political Theory and Law, Professors Cohen and Spitzer argue that the Supreme Court uses Chevron deference strategically so as to produce policy outcomes to the Court's liking. The authors present a game theoretic model that predicts that the Supreme Court will interpret administrative law in a manner designed to manipulate regulatory policy. This model is tested by an empirical analysis of case outcomes that suggests that the Court rationally allocates its review of appellate court decisions in a manner which maximizes its influence upon regulatory policy. Professors Cohen and Spitzer conclude that institutional features of the judicial system limit the ability of the Court to use doctrine to achieve policy goals and that the real strategic value of doctrine is found in how it constrains appellate courts relative to the policy preferences of the Supreme Court.

Nancy Freudenthal and Roger Fransen, Administrative Law: Rulemaking and Contested Case Practice in Wyoming, 31 Land and Water L. Rev. 685 (1996). This article provides a practical and user-friendly outline for lawyers intending to interact with Wyoming administrative agencies. The authors offer three general principles: (1) Deal with the agency at the outset; (2) fully use the low level procedures offered by the agency; and (3) do not rely upon personal connections in the agency to fix client problems. After a primer on Wyoming rulemaking procedure, the article turns to the nuances of contested case hearings. The authors note that Wyoming courts generally give significant deference to administrative procedure, and hence they strongly urge attorneys to participate in agency procedures with the same zeal as when preparing for court.

Michael Lawrence, Finding Shade from the Government in the Sunshine Act: A Proposal to Permit Private Informal Background Discussions at the U.S. International Trade Commission, 45 Cath. U. L. Rev. 1 (1995). When deciding antidumping and countervailing duty (AD/CVD) cases, the U. S. International Trade Commission (ITC) commissioners cast their votes before hearing the opinions of their fellow commissioners. The ITC fears that should commissioners share and discuss their opinions with one another before the final deliberations, a violation of the Government in the Sunshine Act would result (unless the discussion was open to the public). Mr. Lawrence contends that this overly restrictive reading of the Act by the ITC needlessly leads to poorly reasoned decisions and unfair results. The author argues that ITC AD/CVD proceedings are not covered by the Government in the Sunshine Act for two reasons: (1) the proceedings are "informal background discussions" and hence are not a "meeting" within the scope of the Act; and (2) "exception 10" of the Act covers the informal exchange of ideas between the commissioners. Therefore, he advocates that commissioners be allowed to engage in informal background discussions and that the ITC reconsider its interpretation of the Act.

Gary Lawson, Outcome, Procedure and Process: Agency Duties of Explanation for Legal Conclusions, 48 Rutgers L. Rev. 313 (1996). In theory, the Chevron standard for review of agency interpretation of statutes administered by the agency follows the familiar two-part test: the court first determines whether Congress has spoken directly to the question at issue, and second, if the statute is ambiguous, the court accepts any reasonable agency interpretation. In practice, courts often add a third step to Chevron and require the agency to provide a reasoned justification for its interpretation of the statute at issue. Professor Lawson suggests that many courts have failed to explicitly acknowledge this third step due to a common failure to recognize the distinction between judicial review of the outcome, procedure, and process of agency interpretations. Since Chevron reviews the connection between statutory meaning and agency interpretation, it is purely an outcome test, while the procedure and process of agency interpretations are subject to the "hard look" standard of the arbitrary and capricious test. Professor Lawson argues that because the real focus of the unacknowledged "third step" is on the failure (or success) of an agency to demonstrate that its decision was the result of careful reasoning, it constitutes process review and does not fall within the scope of the Chevron test. The author concludes by urging a stricter adherence to the analytical distinctions between review of outcome, procedure, and process. By clearly making this distinction, courts will be in a better position to review outcome issues by using the Chevron reasonableness test and process issues with the "hard look" standard of the arbitrary and capricious test.

Jennifer McCoid, EPA Rulemaking under the Regulatory Flexibility Act: The Need for Reform, B.C. Env. Affairs L. Rev. 203 (1995). The Regulatory Flexibility Act (RFA) is designed to reduce the negative impact of agency rules upon small entities and improve communication between the regulated community and regulating agency. This article articulates four problems of the RFA: (1) the unavailability of judicial review; (2) agency noncompliance with the spirit of the RFA in certification procedures; (3) lack of consideration of indirect effects; and (4) the failure of the Chief Counsel of Advocacy to be an effective advocate for small businesses. The author then provides an overview and analysis of proposed legislative solutions to these problems. EPA compliance with the RFA is used as an empirical case-study of how the Act should be improved so as to provide additional relief to regulated entities. Ms. McCoid presents a unique argument that the consensus team approach taken by the EPA when promulgating rules prevents any one person from having the veto authority necessary to protect the business community from "over-regulation." The author also assails the EPA's data collection techniques and its failure to consider adequately the indirect effects of agency rules. As a solution she suggests a significant strengthening of many aspects of the RFA. [See "More Stealth Regulatory Reform" in this issue for a description of recent amendments to the RFA.]

Richard Nagareda, Turning From Tort to Administration, 94 Mich. L. Rev. 899 (1996). The author examines two attempts to settle mass tort claims, Georgine v. Amchem Prods., Inc., 157 F.R.D. 246 (E.D. Pa. 1994), and In re Silicone Gel Breast Implant Prods. Liab. Litig. (Lindsey v. Dow Corning Corp.), No. CV92-P-10000-S, 1994 U.S. Dist. LEXIS 12521 (N.D. Ala. Sept. 1, 1994), and concludes that courts should organize their analysis of class action settlements by using the example provided by judicial review of administrative regulations. Mr. Nagareda contends that the rise in tort settlements resembles the earlier development of administrative agencies in that both brought about the establishment of new institutions separate from the traditional channels of control. After providing an overview of the general characteristics of mass tort actions, the article urges the adoption of the administrative law "hard look" doctrine in courts' analyses of class action settlements. By insisting upon a reasoned justification of the settlement agreement, courts can serve as a check against the "agency costs" of self-interested class counsels. The author contends that current tort law already contains many elements of administrative law but risks applying them in an ad hoc manner. What is required is a philosophical/jurisprudential shift in the application of tort law towards the established principles of administrative law. To achieve such a transformation, Mr. Nagareda calls upon Congress to provide a statutory framework for the resolution of mass torts based upon the Negotiated Rulemaking Act of 1990.

Pieter Schenkkan, When and How Should Texas Courts Review Agency Rules? 47 Baylor L. Rev. 989 (1996). This comprehensive article delves deeply into the history of, and possible future for, judicial review of agency rules by Texas courts. In the course of examining the Administrative Procedure and Texas Register Act (APTRA), Mr. Schenkkan proposes a series of "answers" designed both to clarify existing Texas law and to suggest directions for its development. This exhaustive analysis of the scope and standards of judicial review of agency rulemaking places a premium upon thorough understanding of the statutory and constitutional functions of judicial review.

Aubry Smith, Executive-Branch Rulemaking and Dispute Settlement in the World Trade Organization: A Proposal to Increase Public Participation, 94 Mich. L. Rev. 989 (1996). This note is a reaction to the "Reformulated Gasoline Case" in which the executive branch attempted to avoid a complaint to GATT regarding the Clean Air Act by entering into a secret deal with Venezuela to promulgate a new agency rule more to Venezuela's liking. In this particular instance Congress learned of the negotiations and passed an appropriations rider prohibiting the promulgation of the negotiated rule. The author argues that executive attempts to comply with international agreements through rulemaking present a danger to the integrity and autonomy of many aspects of democracy. The conflict between domestic environmental protection and international free trade signals that domestic policy preferences may decrease in influence as interactions with foreign powers become increasingly determinative. Since rulemaking pursuant to negotiated settlements are likely to be increasingly necessary and important in this context, the author suggests that increasing public participation in this type of rulemaking is a desirable means of protecting democratic ideals. This could be accomplished by Congress expanding the Trade Act of 1974 so as to require consultation with more domestic interests when negotiating international settlements and by extending the Uruguay Round Agreements Act to cover rulemaking pursuant to such settlements.

Cass Sunstein, Congress, Constitutional Moments, and the Cost-Benefit State, 48 Stanford L. Rev. 247 (1996). In this article, Professor Sunstein explores the 104th Congress's attempts at regulatory reform. Professor Sunstein believes that the election of this Congress, with its distinctive approach to government, perhaps signals the dawning of a "constitutional moment" in which the role of government at all levels will be reexamined. In particular he views the current moment as an attack on the New Deal. Without full public support for sweeping changes in government, this moment has not yet materialized. When and if it does, regulatory reform will be one of its aspects. Indeed, the nation has already begun to examine regulation to determine if the benefits justify the costs. Unfortunately, the 104th Congress has, thus far, failed adequately to address this burgeoning cost-benefit state. Sunstein claims that Congress's failure reflects its inability to redesign the massive federal regulatory scheme. He suggests that the executive branch should oversee regulatory reform, with Congress relegated to providing broad policy direction. Sunstein also suggests that Congress adopt an Administrative Substance Act, building upon the recent learning about the performance of regulation and modeled after the Administrative Procedure Act. Sunstein further calls for the enactment of a "substantive supermandate" requiring a general background rule of cost-benefit balancing for all federal regulation, but he contends that any description of costs and benefits should reflect the full range of diverse values expressed by the public at large.

William Tilleman, Environmental Appeals Boards: A Comparative Look at the United States, Canada and England, 21 Colum. J. Envtl. L. 1 (1996). Environmental Appeals Boards (EABs) fill a valuable and often overlooked role in the field of environmental law. By supplying faster and less expensive resolutions to appeals of decisions by environmental regulators, EABs offer an attractive alternative to traditional litigation. This article provides a comparative analysis of EABs as a means of exploring their function and performance. The author examines four fundamental elements of EABs: (1) how their members are appointed; (2) what issues are within the scope of the boards; (3) the EABs' decision-making methods; and (4) the relationship between EABs and the courts. Mr. Tilleman concludes that an EAB is successful to the extent that it is able to make a "fair" determination based upon sufficient information regarding the economics, ecology, and ethical issues involved in the controversy. Since EABs may be better equipped than courts to understand scientific and technical information, they can come closer to possessing perfect knowledge regarding the issues. Furthermore, the fairness of an EAB can be gauged by the degree that the parties served by the process accept the determinations and legitimacy of the board.

Timothy Wilkins and Terrell Hunt, Agency Discretion and Advances in Regulatory Theory: Flexible Agency Approaches Toward the Regulated Community as a Model of the Congress-Agency Relationship, 63 G. Wash. L. Rev. 479 (1995). Beginning from recent developments in incentive-based regulation in environmental and other contexts, the authors argue that government ideally should hold regulated communities accountable for achieving results while freeing them to develop and choose among unlimited means of accomplishing those results. This departure from traditional "command-and-control" theories of regulation is rooted in the notion that, properly directed, market forces will drive regulated communities to achieve equal (or even superior) results at the least possible cost. The authors move beyond the now widely-advanced incentives-based regulatory theory to argue that comparable thinking might well be applied in the relationship between Congress and the federal administrative agencies and departments. Specifically, they criticize the conventional wisdom that agencies have unconstrained discretion, arguing instead that many agency choices (and particularly choice of regulatory method) are in fact tightly controlled by organic and program-implementing legislation. On the other hand, Congress generally ignores potential outcome- or performance-based controls that might cabin discretion in a manner that does not limit the flexibility and efficient adaptation of methods to particular circumstances. The authors argue that this property of the Congress-agency relationship is analogous to the most unfortunate characteristics of traditional command-and-control regulation. The authors argue that a Congress-agency relationship similar to the regulator-regulated relationship propounded in incentive-based theories - freedom of method, accountability for results - would lead to more effective and cost-efficient regulation.

Surveys

Monica Brady, Administrative Law, 41 Wayne L. Rev. 331 (1995). This survey examines administrative law opinions rendered in Michigan from June 1993 through May of 1994.

Edward McGonagle, Administrative Law, 46 Syracuse L. Rev. 235 (1996). The author surveys the field of administrative law in New York for the period 1994 through 1995, placing a special emphasis upon issues of administrative delay.

Collections

9 Administrative L. J. of Am. Univ. (Fall 1995). William Kovacic, Procurement Reform and the Choice of Forum in Bid Protest Disputes; Michael Malloy, Economic Sanctions and Retention of Counsel; Kent Middleton, Radio Privacy under Section 705(a): an Unconstitutional Oxymoron; US EPA Office of Environmental Justice in the Matter of the Fifth Meeting of the national Environmental Justice Advisory Council; Michael Caccavelli, A Too Quick Fix: NLRB One Year Experimental Regulations Granting ALJs the Power to Dispense with Briefs and Decide Cases from the Bench; Kimberly Dee, Delegation, Deference, and Deregulation: a 3-d Look at Video Dialtone; Matthew Greenberg, the Communications Act: the Need for Tariff Reform; Jackie Kim, the Indian Federal Recognition Administrative Procedures Act of 1995, a Congressional Solution to an Administrative Morass.