Kathy Bradley, Note, Do You Feel the Sunshine? Government in the Sunshine Act: Its Objectives, Goals, and Effect on the FCC and You, 49 Fed. Comm. L. J. 473 (1997). This Note discusses how the costs resulting from the Government in the Sunshine Act, such as a decrease in collegial decisionmaking, staff level decisions, and increased notation voting, outweigh the benefits of the Act in fostering public understanding. Ms. Bradley opines that agencies should not be required to operate more in the sunshine than Congress or the courts, whose decisions must be public, but whose predecisional deliberations can be conducted in private.

David A. Brennen, Treasury Regulations and Judicial Deference in the Post-Chevron Era, 13 Ga. St. U. L. Rev. 387 (1997). This Article features a Chevron analysis in the context of the federal tax code and the Treasury Department. Professor Brennen first outlines the regulatory environment in which the Treasury Department operates. Next is an in-depth analysis of what the author terms the "Chevron era." He includes an overview of several of the major Supreme Court cases preceding Chevron that involved regulatory deference to the Treasury and an analysis of the Chevron opinion. Professor Brennen then focuses on the post-Chevron cases involving deference to Treasury regulations. He demonstrates how the Supreme Court has abided by Chevron in each of its post-1984 decisions involving the validity of a Treasury regulation. Finally, the author concludes that, contrary to the assertions of others, Chevron deference is alive and well. However, courts, especially the Supreme Court, should, in his opinion, be more consistent at referencing Chevron so as to ensure continued adherence.

Toni M. Fine, Multiple Petitions for Review of Agency Ruling: A Call for Further Reform, 31 New Eng. L. Rev. 43 (1996). Historically, the process of filing petitions for review of agency actions was plagued with a venue selection process that spawned a number of difficulties, the most problematic of which were "races to the courthouse." An amendment in 1988 of Section 2112(a) of Title 28 removed the incentive to be the first party to file a petition for review and hence eliminated the "race" to the court of choice. Professor Fine observes that this amendment has undoubtedly made the process of instituting petitions for review more efficient and manageable for every entity involved, but obstacles remain that prevent full realization of the efficiencies and economies offered by the 1988 amendment. Ms. Fine reviews the historical venue selection process with regard to court review of agency action, discusses the history, scope, and operation of the 1988 legislation itself and the benefits it offers. She also argues that despite the considerable gains made by virtue of the 1988 amendment, it did not go far enough in ameliorating the practical complexities and inefficiencies raised by multiple petitions for review of administrative orders. Professor Fine concludes by suggesting additional improvements that could be made to this process through some combination of further amendments to the Federal Rules of Appellate Procedure, local appellate court rules, and the Rules of Procedure of the Judicial Panel on Multidistrict Litigation governing this process.

Sanford N. Greenberg, Who Says It's a Crime? Chevron Deference to Agency Interpretations of Regulatory Statutes That Create Criminal Liability, 58 U. Pitt. L. Rev 1 (1996). Professor Greenberg provides yet another analysis of the landmark Chevron decision. Primarily, his article discusses Chevron's holding and especially its rationale, and also addresses proposed limitations on the reach of Chevron. Next, Greenberg outlines two particularly important proposed exceptions to Chevron's applicability, the criminal liability and deportation exceptions. He addresses the opinion of scholars of Chevron that when courts interpret administrative statutes that are criminally enforceable, Chevron deference may conflict with the doctrine of lenity or the canon of strict construction of criminal statutes. In addition, because deportation's often harsh results share many of the qualities of criminal sanctions, Professor Greenberg provides analysis of the opinion that the deportation exception rests on a clear statement canon: courts purportedly should construe deportation statutes narrowly to avoid approving deportations that are not clearly authorized by Congress. After setting forth the two previously mentioned exceptions, Greenberg contends that courts should reject both the criminal liability exception and its deportation analogue, as they are not desirable, necessary, or easily administered. He asserts that proper application of Chevron principles should help to promote values of national uniformity, policy coherence, and equal treatment of private parties, and the proposed exceptions to Chevron deference threaten to undermine such values.

Daniel Kanstroom, Surrounding the Hole in the Doughnut: Discretion and Deference in U.S. Immigration Law, 71 Tul. L. Rev. 703 (1997). Professor Kanstroom focuses on the problems of discretion and judicial deference in U.S. immigration law. Two recently passed laws have seriously limited judicial review of discretionary immigration decisions of the Board of Immigration Appeals. His Article focuses on this preclusion of judicial review of discretionary agency decisions, beginning with an examination of discretion from a theoretical perspective and going on to examine areas of immigration law in which discretion was traditionally most important. Professor Kanstroom next includes a discussion of immigration-law scholarship and critique. He concludes by calling on the judiciary to provide more oversight regarding discretionary agency decisions.

Ronald J. Krotoszynski, Jr., On the Danger of Wearing Two Hats: Mistretta and Morrison Revisited, 38 Wm. & Mary L. Rev. 417 (1997). The author asserts that, more than any other separation of powers/delegation doctrine decisions, Mistretta v. United States and Morrison v. Olson broadly endorsed the functionalist vision of the modern administrative state. In both Mistretta and Morrison, the Supreme Court assumed that the service of federal judges in quasi-legislative (Mistretta) and quasi-executive (Morrison) roles would not undermine the integrity of the Article III courts. Subsequent developments suggest that the Supreme Court significantly underestimated the corrosive impact of permitting federal judges to discharge consecutively (if not concurrently) judicial, legislative, and executive functions. Professor Krotoszynski discusses the Supreme Court's opinion in Mistretta and its aftermath in the lower courts. He gives particular attention to the failure of Sentencing Commissioners/judges to recuse themselves in cases involving direct challenges to the legality of the United States Sentencing Commission's work product. Krotoszynski also reviews the Morrison opinion and describes the real-world effects of requiring federal judges to undertake an essentially political task. In addition, he examines historical counterexamples of judges undertaking extrajudicial service in the executive branch of government. Finally, the author offers an agenda for positive reform and takes up the broader policy concerns that necessitate reform. Significantly, he argues that an element of formalism should be deemed essential in all separation of powers analyses that involve delegations of political authority to either Article III courts or Article III judges.

Thomas O. McGarity, Response, The Courts and the Ossification of Rulemaking: A Response to Professor Seidenfeld, 75 Tex. L. Rev. 525 (1997). Professor McGarity offers his criticism of Professor Seidenfeld's position on the ossification of notice-and-comment rulemaking. [See below Seidenfeld, The Courts and the Ossification of Rulemaking]. McGarity agrees with Professor Seidenfeld that hard look judicial review is not the only factor contributing to the present ossification of the rulemaking process, but he is more concerned about its potential to disrupt ongoing agency programs and less concerned about the potential for irrational decisionmaking that might result from reduced judicial scrutiny. McGarity proposes that Seidenfeld has missed the more serious and debilitating impact of judicially required changes in the way that agencies go about analyzing and resolving regulatory problems by focusing his attention only on the problems stemming from uncertainty. The author asserts also that in Professor Seidenfeld's commitment to civic republican balance, he naively assumes that agency rulemaking rationales will be scrutinized by neutral "partners" in the regulatory enterprise with whom the agencies may over time conduct fruitful "dialogues." Professor McGarity believes that this demonstrates a false perception of the current reality that many rules aimed at protecting citizens from the vicissitudes of the marketplace are being reviewed by ideologically driven judges who were placed upon the bench precisely because of their commitment to private markets and their skepticism about the governmental programs that the agencies are advancing. McGarity concludes with reasons why he is unpersuaded that the judicial contribution to the ossification problem can be successfully brought under control by "operational" modifications of the hard look doctrine of the sort that Professor Seidenfeld advocates.

Randall K. Miller, Congressional Inquests: Suffocating the Constitutional Prerogative of Executive Privilege, 81 Minn. L. Rev. 631 (1997). This Article addresses the bitter post-Watergate controversy between Congress and the executive branch over access to information, where two implicit constitutional doctrines have collided: executive privilege and congressional investigatory power. Professor Miller argues that the one prominent district court opinion on this subject, United States v. House of Representatives, was wrongly decided and advocates that federal court resolution of escalated disputes in a civil proceeding should be available to either political branch immediately following an assertion of executive privilege coupled with an issuance of a congressional subpoena. Miller contends that availability of a civil proceeding in the district court is necessary to safeguard the legitimate constitutional interests of both branches. Professor Miller argues that political negotiation in these escalated disputes is constitutionally insufficient and advocates earlier and more assertive judicial review. Judicial intervention in escalated information disputes is necessary to check frivolous or unwarranted assertions of executive privilege and simultaneously ensures that executive branch functions are not stifled or sabotaged by overly-intrusive congressional investigations.

David A. Schlesinger, Note, Chevron Unlatined: The Inapplicability of the Canon Noscitur A Sociis Under Prong One of the Chevron Framework, 5 N.Y.U. Envtl. L. J. 638 (1996). This student note addresses what he believes is perhaps the most pressing "unanswered" question since Chevron was decided: which of the traditional canons of statutory construction should a court use when attempting to divine Congress's statutory intent? Mr. Schlesinger's article confines itself to analyzing one of the "ancient" canons of statutory interpretation and its interaction with Chevron: noscitur a sociis, which literally means "it is known from its associates." He argues that this seldom-used, tie-breaker canon should not be available to a court under prong one of the Chevron test. After discussing the history and theory of Chevron, the author then focuses on the noscitur a sociis canon and its application in statutory interpretation decisions, including its limiting nature, and the Court's hesitation to rely exclusively on it in these cases. He examines the canon's application in three cases decided under the Chevron framework and argues that the canon applied there retains the same characteristics it has in an ordinary statutory case: it is limiting in nature and always accompanied by several other interpretative theories. Finally, Mr. Schlesinger posits that because the canon has such limited applicability in statutory interpretation in general, and even less applicability in the Chevron framework because of its restrictive textualist methodologies, the Court should refrain from using it in a prong-one analysis.

Mark Seidenfeld, Demystifying Deossification: Rethinking Recent Proposals to Modify Judicial Review of Notice and Comment Rulemaking, 75 Tex. L. Rev. 483 (1997). Recently, many articles have arisen in the administrative law field lamenting the "ossification" of notice and comment rulemaking -- ossification referring to the inefficiencies that plague regulatory programs because of analytic hurdles that agencies must clear in order to adopt new rules. This Article carefully explores proposals for "deossification," or lowering some of the rulemaking hurdles, without losing sight of the need for checks on agency action. Professor Seidenfeld begins by describing how hard look review creates three kinds of uncertainty about how courts will treat agency decisions, and how this uncertainty in turn discourages agencies from adopting legislative rules. The author then summarizes recent proposals to relax the hard look standard and identifies potential detrimental effects that might flow from these proposals. In doing so, Professor Seidenfeld considers both the positive and negative impact of judicial review on agency policy setting, and therefore does not assume that avoiding ossification is the only parameter by which to evaluate these proposals. The Article concludes that calls for relaxing judicial review may be premature and suggests instead particular operational changes in the manner in which courts engage in such review as alternatives that can ease the ossification of rulemaking without forfeiting the benefits of aggressive judicial review.

Peter L. Strauss, Administrative Law: The Hidden Comparative Law Course, 46 J. Legal Ed. 478 (1996). This article is Professor Strauss's contribution to a workshop organized for law professors by the Association of American Law Schools. The purpose of the workshop was to expose experienced law teachers to developments in the law outside the field in which they teach and write. Professor Strauss's theme was that administrative law could serve as an effective comparative law example in a number of courses in the curriculum. For teachers of Civil Procedure, Professor Strauss emphasized the process orientation of Mathews v. Eldridge; for teachers of Constitutional Law, the developments in separation-of-powers jurisprudence; for teachers of Criminal Law, a reassurance that administrative law and criminal law processes continue to maintain their separate tracks, and that the belief at one time perhaps that Fourth and Fifth Amendment protections at least might show some similarity in administrative and criminal law has not come true. Professor Strauss also compared Federal Courts and Legislation courses.

Symposia

Symposium on Regulating Medical Innovation, 82 Va. L. Rev. 1403 (1996). Major articles include: Do Institutions Matter? A Comparative Pathology of the HIV-Infected Blood Tragedy, Michael Trebilcock, Robert Howse, Ron Daniels; The Limited Regulatory Potential of Medical Technology Assessment, Einer Elhauge; Public Research and Private Development: Patents and Technology Transfer in Government Sponsored Research, Rebecca S. Eisenberg; The Architecture of Government Regulation of Medical Products, Richard A. Merrill.

Symposium: The Fiftieth Anniversary of the Administrative Procedure Act: Past and Prologue, 32 Tulsa L. J. 185 (1996). Rulemaking and the Administrative Procedure Act by Richard J. Pierce, Jr.; Adjudication and the Administrative Procedure Act by Bernard Schwartz; Judicial Review in Midpassage: The Uneasy Partnership Between Courts and Agencies Plays On by Patricia M. Wald; Fifty Years with the Administrative Procedure Act and Judicial Review Remains an Enigma by James C. Thomas; The Influence of the Federal Administrative Procedure Act on California's New Administrative Procedure Act by Michael Asimow; and Regulatory Flexibility and the Administrative State by Marshall J. Breger.

State Administrative Law Articles

John Bender, Solid-gold Photocopies: A Review of Fees for Copies of Public Records Established under State Open Records Laws, 29 Urb. Law. 81 (1997).

Donna E. Blanton & Robert M. Rhodes, Loosening the Chains That Bind: the New Variance and Waiver Provision in Florida's Administrative Procedures Act, 24 Fla. St. U. L. Rev. 353 (1997).

F. Scott Boyd, Legislative Checks on Rulemaking Under Florida's New APA, 24 Fla. St. U. L. Rev. 309 (1997).

Jim Rossi, The 1996 Revised Florida Administrative Procedure Act: A Survey of Major Provisions Affecting Florida Agencies, 24 Fla. St. U. L. Rev. 283 (1997).

Edward Tomlinson, The Maryland Administrative Procedure Act: Forty Years Old in 1997, 56 Md. L. Rev. 196 (1997).

Daniel Traynor (student note), Open Records (Adams County Record v. Greater North Dakota Ass'n), 72 N.D. L. Rev. 745 (1996).

Elizabeth C. Williamson (Comment), The 1996 Florida Administrative Procedure Act's Attorney's fees Reforms: Creating Innovative Solutions or New Problems?, 24 Fla. St. U. L. Rev. 439 (1997).