Michael Asimow, Administrative Law Under South Africa's Interim Constitution, 44 Am. J. Comp. L. 393 (1996). Professor Asimow examines two of the provisions in South Africa's interim Constitution. One of these provisions provides for twenty-five fundamental rights and establishes a Constitutional Court consisting of newly appointed and carefully selected judges to enforce its provisions. The other provision is a part of the bill of rights that articulates fundamental norms of administrative law. Professor Asimow believes that the administrative law provisions of the interim and the permanent constitution (effective in 1999) are of intense practical importance and will play a key role in South Africa's immediate future. He feels there will be adjudication and rulemaking in abundance by this new government as means to improve economic development, housing, infrastructure, better education and health care, and numerous other services to the vast majority of the population who were victimized by apartheid laws and who subsist at third world levels. The author articulates the challenges that face the South African government and administrative agencies in the application of these provisions, especially since many provisions diverge sharply from prior South African law and are ambiguously set forth in the interim constitution. The author suggests that the administrative law provisions of the interim constitution threaten to deluge the newly created Constitutional Court with context-specific issues relating to the lawfulness and justifiability of administrative action as well as question relating to procedural fairness and written reasons statements. In solving this problem, Professor Asimow suggests the need for a South African administrative procedure act which would necessarily limit the administrative law provisions of the interim constitution and would lessen the load of the Constitutional Court without sacrificing its legitimacy.

Ashutosh Bhagwat, Three-Branch Monte, 72 Notre Dame L. Rev. 157 (1996). Professor Bhwagwat believes that the Supreme Court's decision in Heckler v. Chaney rests on a fundamental misunderstanding of the nature of the administrative state and of the role that separation of powers principles play within agencies that combine legislative, adjudicative, and prosecutorial functions. Because of this misunderstanding, the unintended consequence of Chaney has been to permit administrative agencies to shield policy decisions of great public significance from judicial review by creating a situation in which agencies are able to hide what are at bottom legislative and judicial judgments behind the facade of executive discretion by playing, as it were, a game of three-branch monte. The author feels the decision in Chaney has disturbed the judicial review component of the APA, whose function is to control and constrain agency discretion, by improperly shifting power from reviewing courts to agencies. This critical view of Chaney has also been reflected in numerous lower court decisions, most notably those of the D.C. Circuit, in which it has limited the scope of the Chaney doctrine to its narrow holding regarding review of agency nonenforcement decisions and created broad exceptions to its statements concerning nonreviewability. After establishing that, contrary to the Chaney decision, judicial review of agency enforcement policy and nonenforcement decisions is desirable as a matter of sound policy, the author addresses the practicability of this assertion. He argues that a balance can be found in a system of modulated review, which rests heavily on a dual requirement that an agency state reasons for failing to pursue an enforcement action and develop coherent guidelines and policies to control future exercises of enforcement discretion. He believes this system of review would alleviate the worst concerns raised by the Chaney doctrine and avoid the costs of limiting agency flexibility that a right of review might otherwise produce.

Cary Coglianese, Litigation within Relationships: Disputes and Disturbance in the Regulatory Process, 30 Law and Soc'y Rev. 735 (1996). This article examines how litigation affects ongoing patterns of interaction between regulators and interest groups. Much research has been conducted to examine the role litigation plays in society and has given rise to the dominant view that litigation usually arises as a last resort, signaling either a breakdown in social relationships or a lack of close relationships at the outset. In addition, disputants are almost always outsiders, strangers, or others who lack any anticipated future relationships and litigation has been deemed as one of the worst kinds of social interaction. Little attention has been given to disputing in the context of regulatory policymaking by government agencies. Mr. Coglianese takes a look at litigation and how it affects ongoing patterns of interaction between regulators and interest groups, specifically the relationships between interest groups and the U.S. Environmental Protection Agency (EPA). His findings directly contrast with the prevailing relationship theory of disputing. In the regulatory context, he finds that litigation occurs within established relationships between interest group representatives and agency staff. Also surprising, those interest groups having the most extensive, long-standing relationships with EPA tend to be the ones most likely to go to court challenging the agency's regulations. By comparing regulatory disputing with disputing outside the regulatory realm, the author finds support for an alternative theory, the "disturbance theory," that both explains the puzzling findings of his research and builds toward a more robust account of the use of litigation as a means of resolving conflict. The disturbance theory takes account of the different ways litigation can affect prior modes of interacting and draws attention to differences in litigation as well as in relationships. The type of litigation employed in the regulatory setting creates at most a small disturbance to relationships between interest groups and the EPA. Litigation challenging EPA rules does not signal an end to relationship but is usually just another round of an ongoing process of bargaining.

Dan M. Kahan, Is Chevron Relevant To Federal Criminal Law? 110 Harv. L. Rev. 469 (1996). The principles of legality and separation of powers are conventionally understood to require that lawmaking, law-interpreting, and law-enforcement be carried out by distinct institutions. This article challenges this understanding in the context of federal criminal law. Descriptively, Professor Kahan maintains that federal criminal law is most accurately conceptualized as a "common law-making" regime in which Congress delegates power to courts by enacting incompletely specified statutes. Normatively, he argues that the law would be better if the delegated lawmaking authority that courts now exercise were instead wielded by the Department of Justice. The legal mechanism for this reform would be the Chevron doctrine, which requires courts to defer to executive branch readings of ambiguous regulatory statutes. The likely advantages of such an arrangement, Professor Kahan argues, include greater expertise in the making of criminal law, greater uniformity in the interpretation of it, and (most surprisingly) greater moderation in the enforcement of it.

Richard J. Pierce, Jr., The Due Process Counterrevolution of the 1990's?, 96 Colum. L. Rev. 1973 (1996). It took only two years for the Supreme Court to stage the due process revolution. This revolution was accomplished in five opinions issued between 1970 and 1972, in which the Court expanded dramatically the scope of the interests that are protected by procedural due process and the procedural safeguards that apply to those interests. A retreat of sorts began even before the revolution was complete. By 1978, the Court had issued nine opinions that reduced either the scope of the interests protected or the procedural safeguards that attached to the interests protected. The retreat, however, was far from complete. Both the scope of protection and the list of procedural safeguards available in 1978 extended far beyond the prerevolutionary state of the law. Between 1979 and 1994, the retreat abated in all contexts except government regulation. Due process law seemed to have settled into an uncomfortable and untidy state of equilibrium. It now appears that the equilibrium has ultimately become unstable and unsustainable. Developments in the last two years seem to foreshadow a due process counterrevolution. Professor Pierce believes that a counterrevolution will be fought and won before the turn of the century. In this essay, the author first traces the history of the revolution, and then examines the period of consolidation from 1970 through 1994. He then explains why he expects that the contours of procedural due process law at the turn of this century will bear a striking resemblance to the prerevolutionary state of the law and why he is not dismayed at that prospect.

Katherine Scherb, Comment, Administrative Subpoenas for Private Financial Records: What Protection for Privacy Does the Fourth Amendment Afford?, 1996 Wis. L. Rev. 1075 (1996). As federal regulatory agencies investigate failed financial institutions, the courts have had to confront the Fourth Amendment implications of subpoenas for privately held financial records and, specifically, the degree of justification an agency must articulate before it can subpoena these records. The United States Supreme Court has set forth a lenient Fourth Amendment standard for courts to apply in reviewing administrative subpoenas seeking documents and records, the "reasonable relevance standard." However, the cases decided by the Supreme Court primarily involve corporate records, which the Court has made clear are entitled to a lesser expectation of privacy than an individual's private papers. A number of federal appeals courts have extended this lenient standard to administrative subpoenas seeking private financial records, but drawing on Fourth Amendment and statutory limitations on agency authority, courts have required a higher level of justification by agencies in certain circumstances. After the introduction in Part I, Part II of this Comment examines the historical development of the Fourth Amendment standard applied by courts in reviewing administrative subpoenas for documents. Part III discusses cases recently decided by appeals courts in which officials of failed financial institutions have raised Fourth Amendment challenges to administrative subpoenas seeking privately held financial documents. Part IV concludes that the majority of appeals courts have achieved an appropriate balance between the privacy rights of the individual and the governmental interest in resolving the affairs of failed financial institutions. The reasonable relevance standard would continue to be appropriate in most cases, but an agency should have to meet a heightened level of justification -- the demonstration of an articulable suspicion of individualized wrongdoing -- when private financial records are sought from family members not involved in the business transactions in question and when an agency seeks private financial records solely for the purpose of assessing the net worth of individuals to determine the cost-effectiveness of bringing suit.

George Wyeth, Regulatory Competition and the Takings Clause, 91 Nw. U. L. Rev. 1000 (1996). The takings issue has been one of the most perplexing problems in the law and this Article suggests approaching the problem by asking whether the government action in question would have been taken if the property owner had been able to choose the jurisdiction with authority to regulate the property. The author argues that the problem at the core of a taking is that governments are able to exploit barriers that inhibit the ability of property owners to make such choices freely (such as the immobility of many forms of property), so as to extract benefits from property that could not be obtained if the property owners were more free to bargain effectively.

Colloquy, Deregulatory Takings and Breach of the Regulatory Contract, 71 N.Y.U. L. Rev. 851 (1996). Over the past century, as the regulatory state steadily expanded its reach, courts frequently addressed claims that regulatory actions amounted to an unconstitutional taking. Recently, however, legislation in the telecommunications and electric power industries have brought deregulatory concerns to the fore. Part 1 of this colloquia presents the first detailed analysis of the interaction between the Takings Clause, deregulation, network pricing, and contract law. In the typical case of regulated industries, firms and their investors agree to bear considerable 'incumbent burdens' in exchange for a regulated rate of return. Sidak and Spulber first demonstrate that this arrangement represents a regulatory contract and find that recent deregulatory measures constitute breach. The authors then argue that, whether or not a regulatory contract in fact exists, recent mandatory unbundling in the electric power industry and open-access regulation in the telecommunications field effectuate a taking without just compensation. Finally, relying on concepts such as investment-backed expectations and the efficient component-pricing rule, the authors not only demonstrate that damages would be equivalent under either contract or takings theory, but also warn that governments could face enormous liability for their deregulatory measures. Two responses to the Sidak and Spulber article follow, where Judge Stephen Williams and Professor Williamson offer both their support and simultaneous criticism for the theory set forth.

Special Issue: The Administrative State at a Crossroads: The APA at Fifty, 63 U. Chi. L. Rev. 1375 (1996) -- Stephen Williams, the Era of "Risk-Risk" and the Problem of Keeping the APA Up to Date; Peter Strauss, Changing Times: The APA at Fifty; W. Kip Viscusi, Regulating the Regulators; Thomas McGarity, The Expanded Debate over the Future of the Regulatory State; Cass Sunstein, Health-Health Tradeoffs.