John F. Coverdale, Court Review of Tax Regulations and Revenue Rulings in the Chevron Era, 64 Geo. Wash. L. Rev. 35 (1995). In this article, Professor Coverdale demonstrates that courts do not utilize Chevron, U.S.A. Inc. v. NRDC as the controlling standard of review in tax maters and argues that this practice is appropriate. Despite Chevron's purported applicability to all agency statutory construction, the courts have largely ignored the doctrine in their analysis of Treasury regulations and Revenue Rulings. Instead, the courts have continued to follow preexisting standards of review of IRS statutory constructions and actions. The courts' treatment of the Chevron doctrine has been proper because the standard of review fails to recognize the different contours of the underlying substantive law. Chevron presumes that when Congress leaves an ambiguity or a gap in the statute, it is implicitly delegating policymaking authority to the administering agency. This assumption is flawed with regard to the tax field, in which Congress generally grants policymaking authority to the IRS only by explicit delegation. Thus, agency interpretations made under an implicit delegation, although entitled to some deference, are not entitled to Chevron deference.

Ken Duck, Comment, Now That the Fog Has Lifted: The Impact of Japan's Administrative Procedure Law on the Regulation of Industry and Market Governance, 19 Fordham Int'l L.J. 1686 (1996). The non-transparent and anti-competitive regulatory methods of Japan's economic bureaucracy impede new entrants to Japanese markets. Japan's regulatory system emphasizes close, informal contacts between the regulators and the firms they regulate. "Gyosei shido," or administrative guidance, the process by which ministries use implied threats of future action or inaction in seeking a party's compliance with an administrative goal, is the primary regulatory method in Japan. Responding to criticism of Japan's regulatory practices and the shift of Japan's industrial base overseas, Japan enacted the "Gyosie Tetsuzuki Ho," or Administrative Procedure Law ("APL") on November 12, 1993. This Comment argues that the APL will help transform Japan's informal regulatory style into a market-based regulatory structure that will foster improved efficiency and other benefits associated with market-based regulations. Mr. Duck discusses the development of informal administrative decision-making methods within Japan, analyzes the lack of judicial review of administrative guidance, and examines the process of administrative guidance. He also examines the factors that contributed to the enactment of the APL, to both limit and refine the administrative guidance process. Next, the author discusses the APL in light of the previous procedural inadequacies of the administrative guidance process, highlights new procedural guidelines promulgated by the Ministry of International Trade and Industry and the Ministry of Finance and analyzes these ministries' compliance with the APL. Mr. Duck argues that the APL is a positive first step towards the establishment of fair and transparent administrative processes in Japan.

James R. Harvey III, Note, Loyalty in Government Litigation: Department of Justice Representation of Agency Clients, 37 Wm. & Mary L. Rev. 1569 (1996). In this Note, Mr. Harvey intends to clarify the problems of loyalty for the Department of Justice in agency representation. The author provides the context for the discussion on loyalty by examining the current state of DOJ litigation authority. He also examines the behavioral models of DOJ loyalty, including a historical perspective model and a bureaucratic model. Some commentators look to experience and political maneuvering to explain DOJ loyalties, whereas others use normative models in an attempt to distance DOJ from arbitrary and partisan loyalties. The author also discusses the effect of using the ethical responsibilities of a government attorney as a normative model for defining the loyalty of the DOJ. The Note concludes that no one model satisfactorily explains DOJ's position. Rather, the models are simply factors to consider when describing government action and loyalty. The author alleges that the models are useful for analyzing institutional norms for predictive behavior but not for mandating complaint behavior.

Gregory E. Maggs, Reconciling Textualism and the Chevron Doctrine: In Defense of Justice Scalia, 28 Conn. L. Rev. 393 (1996). This article defends Justice Scalia's embrace of textualism as a means of statutory interpretation, despite some critics' characterization of his view as undermining a foundation of administrative law. Justice Scalia's critics specifically assert that his focus on statutory language causes him to misapply the important Chevron doctrine. Professor Maggs argues that Justice Scalia is not deferring either too much or too little under the Chevron doctrine, but that his textualism approach, on the contrary, produces what should be uncontroversial results. Whatever difficulties textualism may or may not have as a method of statutory interpretation, the author does not find a Chevron conflict. Professor Maggs provides an overview of textualism and Chevron and documents Justice Scalia's strong support for each doctrine. He also describes, in detail, the contradictory arguments that writers have made about how Justice Scalia's textualist approach affects his analysis in Chevron cases. The author defends Justice Scalia with the results of his extensive study of every Chevron decision in which Justice Scalia has participated. The author asserts that the study refutes the contentions of both categories of Justice Scalia's critics. It shows that Justice Scalia votes to uphold agency determinations just about as frequently as he votes to invalidate them; that he almost always votes with the majority of the Court; that his views regularly have coincided with those of nontextualists, such as Justices Marshall, Blackmun, and Stevens; and that his voting pattern has not changed over time.

Gerald E. Ruth, Unification of the Administrative Adjudicatory Process: An Emerging Framework to Increase "Judicialization" in Pennsylvania, 5 Widener J. of Pub. L. 297 (1996). Judge Ruth, Chief ALJ for the Pennsylvania Liquor Control Board, writes in favor of the creation of a central panel system for ALJs in Pennsylvania. Judge Ruth surveys the advantages of the central panel system and includes the report of a task force created by the Governor of Maryland, which reports on the results of the central panel system in the 22 states that have adopted one and which recommends one for Maryland.

George B. Shepherd, Fierce Compromise: The Administrative Procedure Act Emerges From New Deal Politics, 90 Nw. U. L. Rev. 1557 (1996). Appropriate to the Fiftieth Anniversary of the APA, Professor Shepherd has produced an extensive history of the enactment of the APA. He traces the political and legislative battles from the pre-New Deal legislative efforts to the American Bar Association's first hesitant reform proposals in 1937, during a period when New Deal opponents sought to impede New Deal programs not in Congress, but in the Supreme Court. He goes on to examine how, after the Supreme Court began to uphold New Deal programs in 1937, opponents of the New Deal switched their focus to seeking reform in the legislature, as a coalition of Republicans and Southern Democrats passed the anti-New Deal Walter-Logan bill in 1940, followed by President Roosevelt's veto. Next, he describes World Was II's impact on the debate, and Republicans' and Southern Democrats' grudging agreement to the APA in 1946.

Symposia

Regulatory Reform, 31 Wake Forest L. Rev. 581 (1996). Regulatory Reform: Where Are We Going? Susan Rose-Ackerman; OSHA's Critics and Regulatory Reform, Thomas O. McGarity and Sidney A. Shapiro; Scope of Review Legislation: The Lessons of 1995, Ronald M. Levin; Pro-Ossification: A Harder Look at Agency Policy Statements, Robert A. Anthony and David A. Codevilla; Economic Analysis of Rules: Devolution, Evolution, and Realism, Richard Whisnant and Diane DeWitt Cherry; From Expertise to Politics: The Transformation of American Rulemaking, Peter L. Strauss; Property Rights Debate Frames Arguments for Regulatory Reform, Charles H. Taylor; Regulatory Reform: An Administrator's Viewpoint, Harry E. Payne, Jr.; Common Sense Reform: A Legislator's Viewpoint, Patrick Ballantine.

Symposium on the 50th Anniversary of the APA, 10 Admin. L. J. of American U. 1 (1996). The Supreme Court and the APA: Sometimes They Just Don't Get It, Robert A. Anthony; The Administrative Procedure Act and Regulatory Reform: A Reconciliation, Steven P. Croley; Birth Pangs of the Administrative Procedure Act, Walter Gellhorn; Administrative Procedure Legislation in 1946 and 1996: Should We Be Jubilant at this Jubilee, Ronald M. Levin; APA-Adjudication: Is the Quest for Uniformity Faltering? Jeffrey S. Lubbers; The APA and Regulatory Reform, Richard J. Pierce, Jr.; A Delegation Theory of the APA, Sidney A. Shapiro; Practical Guidance on the Applicability of the Federal Advisory Committee Act, Steven P. Croley; Judicial Review of Informal Agency Action on the Fiftieth Anniversary of the APA: the Alleged Demise and Actual Status of Overton Park's Requirement of Judicial Review "on the Record," Gordon G. Young; Proceedings of the Sixth Annual Robert C. Byrd Conference on the AdministrativeProcess.

Surveys

Annual Survey of Pennsylvania Administrative Law, 5 Widener J. Pub. L. 617 (1996)

Susan Wells Drechsel, Administrative Law (in Annual Eleventh Circuit Survey, January 1, 1995- December 31, 1995), 47 Mercer L. Rev. 675 (1996).

Paul Enockson, Student Survey, Administrative Law (Annual Tenth Circuit Survey September 1994 - December 1995), 73 Denv. U. L. Rev. 619 (1996)

Howard N. Fenton, III, Survey of Ohio Administrative Law 1994-1995, 22 Ohio N. U. L. Rev. 963 (1996)

Don LeDuc, Michigan Administrative Law, October Term 1994-95, 13 T.M. Cooley L. Rev. 341 (1996)

David E. Nykanen, Administrative Law (in Annual Survey of Michigan law, June 1, 1994-May 31, 1995), 42 Wayne L. Rev. 343 (1996)