Bernard Bell, Using Statutory Interpretation to Improve the Legislative Process: Can It Be Done in the Post-Chevron Era?, 13 J. L. & Pol. 105 (1997). This article argues that the manner in which courts defer to agency interpretations of statutes undermines the arguments made by various prominent scholars and judges that the courts can encourage improvements in the legislative process by adopting certain principles of statutory interpretation. In particular, scholars increasingly view statutory interpretation as a means to improve the legislative process and cure legislative pathologies. The article focuses on the interpretive theories of Professors Sunstein and Macey, and the New Textualists. Professor Sunstein views the lack of deliberation as the chief contemporary legislative pathology. Professor Macey views dominance of the legislative process by narrow interest groups as the major current legislative pathology. Meanwhile, the New Textualists (such as Justice Antonin Scalia) view the departure of the legislative process from the constitutional ideal as the chief pathology currently afflicting the legislative process. Sunstein, Macey, and Scalia have developed interpretive principles that they believe will improve the legislative process by curing these pathologies. Using Sunstein's, Macey's, and Scalia's theories as examples, the article shows that interpretive theories designed to improve the legislative process will not produce the results the theorists hope for because of the manner in which the federal courts give deference to agency interpretations of statutes under Chevron v. Natural Resources Defense Council. Professor Bell shows that under Chevron the courts analyze an agency's ultimate conclusion about a statute's meaning without analyzing the agency's interpretive methodology, i.e., the interpretive principles the agency used to reach its conclusion. As a result, courts do not require agencies to follow any particular interpretive methodology; consequently, judicial adoption of Sunstein's, Macey's, or Scalia's interpretive theories would probably do little to cure the legislative pathologies they identify. The article then suggests that some principles of interpretive methodology should be established by courts and enforced upon agencies. In particular, interpretive principles that address the performance of the legislative process or the relative powers of the three branches of government (e.g., whether legislative history may be considered in interpreting statutes) should be established by courts, while interpretive principles related to particular subject areas (e.g., whether exceptions to the anti-trust laws should be construed narrowly) should be established by agencies.

Mark E. Budnitz, The FTC''s Consumer Protection Program During the Miller Years: Lessons for Administrative Agency Structure and Operation, 46 Cath. U.L. Rev. 371 (1997). In this article Professor Budnitz challenges the common caricatures of former Federal Trade Commission (FTC) chairmen Michael Pertschuk (under President Carter) and James Miller (under President Reagan) as, respectively, an overzealous "national nanny" and an industry puppet. The article focuses primarily upon the FTC during the Miller years and examines FTC enforcement cases, the placement of FTC commissioners and staff members, and the agency's regulatory program under Miller. Budnitz contends that by examining the general process of FTC enforcement, rather than just the final results of agency action during the Miller years, that fundamental insights can be gained about the internal workings of the FTC. The article concludes by advocating that the FTC Act be amended so as to require a notice and comment period prior to any agency action by the Chairman to adopt substantive changes regarding the definition and enforcement of the agency's authority to protect consumers under Section 5 of the Act.

Jon C. Dubin, Torquemada Meets Kafka: The Misapplication of the Issue Exhaustion Doctrine to Inquisitorial Administrative Proceedings, 97 Col. L. Rev. 1289 (1997). Administrative agencies whose principal function is the distribution of benefits and social services to the public historically have eschewed formal "judicialized" procedure in adjudication due to the volume of cases processed. Accordingly, these "benefactory" agencies typically employ informal "inquisitorial" adjudicative models as opposed to the traditional adversary model utilized by regulatory agencies and courts. The largest benefactory agency, the Social Security Administration (SSA), has endowed the Administrative Law Judge with multifaceted investigative responsibilities and the duty to represent the claimant and the SSA alike. In the past four years, the courts have begun to apply a formal procedure to limit access to judicial review in SSA cases by refusing to consider issues asserted in court that the claimant has not specifically raised in the inquisitorial agency proceedings. This article explores the judicial creation of this formal "issue exhaustion" rule in SSA cases. It argues that the inquisitorial adjudicative model is ill-suited for and was never envisioned to embrace formal judicialized doctrines such as issue exhaustion. Thus, none of the recognized prudential purposes underlying administrative exhaustion are adequately served in this context. Furthermore, the agency fails to provide adequate notice and a meaningful opportunity to raise and preserve issues an arguments in the "mass justice" oriented informal proceedings. Therefore, the agency should be barred from securing an issue exhaustion prerequisite to judicial review under applicable equitable and procedural due process principles.

Toni M. Fine, Appellate Practice on Review of Agency Action: A Guide For Practitioners, 28 U. Tol. L. Rev. 1 (1996). Professor Fine's article provides a four-part overview of agency review proceedings. Part I identifies the issues and pitfalls of the availability and timing of judicial review. Part II examines the process of selecting a court. Part III provides a guide to agency review proceedings, while Part IV explores the probable outcomes of a petition for review, options available to the losing party, and agency responses to judicial orders. Professor Fine's stated goal in this article is to de-bunk the myth that one need be a member of the Washington D.C. administrative practice elite in order to secure effective appellate review of agency actions and to provide a working guide to attaining such review.

Michael G. Heyman, Essay, Discretionary Adjudicatory Rulemaking: Due Process of Lawmaking and Immigration Law, 11 Geo. Immigr. L.J. 83 (1996). In this essay Mr. Heyman examines the distinctive field of immigration law and contends that the judiciary grants exceptional deference to the largly discretionary decisions of the immigration system. Heyman identifies discretionary excesses in the rulesmaking process by the Board of Immigration Appeals (BIA) which usurp Congressional authority by serving as de facto legislation. The essay concludes that for immigration law to fare better a fundamental look should be taken at the process of immigration law creation and that the BIA should be restricted from acting in a quasi-legislative role.

J.B. Ruhl, The Arrow of The Law In Modern Administrative States: Using Complexity Theory to Reveal the Diminishing Returns and Increasing Risks the Burgeoning of Law Poses to Society, 30 U.C. Davis L. Rev. 405 (1997). In this article Professor Ruhl concludes his trilogy of studies examining the use of complex adaptive systems theory as a model for law of the administrative state. He contends that increasing complexity of the law results in both diminishing returns and a critical fragility of the legal system. Ruhl envisions law as a complex dynamic system subject to the "arrow of sociological evolution" in which social processes cannot be put into reverse so as to re-create the past. By examining this "arrow" of Administrative Law through the lens of complex adaptive systems theory, Ruhl concludes that law of the Administrative State has created a feedback loop in which: (1) society relies upon new and interrelated laws in an attempt to create desired sociolegal outcomes; (2) which creates social stratification of the winners and losers under the new laws; (3) creating isolated subgroups according to the outcomes under the vast array of new laws; (4) resulting in perceived and actual inequalities; (5) thus producing a demand for even newer laws to address the inequalities.

Bernard Schwartz, Federalism, Administrative Law, and the Rehnquist Court in Action, 32 Tulsa L.J. 477 (1997). In this short article Schwartz provides an overview of the Rehnquist Court's decisions with a special emphasis on the Court's treatment of issues of Federalism. The Article examines in some depth Seminole Tribe of Florida v. Florida (116 S.Ct 1114), which broadened Eleventh Amendment state immunity from suit. The author contends that Seminole Tribe may have a far-reaching impact upon suits brought against the states and documents recent lower court decisions adopting the broad Eleventh Amendment interpretation of Seminole Tribe. Professor Schwartz also examines general Rehnquist Court issues such as the apparently light workload of the Court and the aesthetics of Justice Scalia's beard. The Article concludes with an appendix containing a statistical breakdown of the degree to which the Justices agreed with each other in decisions rendered during the October 1995 Supreme Court Term.

Bernard Schwartz, A Decade of Administrative Law: 1987-1996, 32 Tulsa L. J. 493 (1997). Professor Schwartz, whose annual reviews of developments in administrative law are well known to readers of the Section's Administrative Law Review, has undertaken a ten-year review of impressive scope. The review covers developments in the law of separation of powers, investigatory procedures and requirements, Due Process, adjudicatory procedures, rulemaking, scope of judicial review, and the availability of judicial review. As usual, Professor Schwartz does not limit himself only to federal law developments but includes state law developments as well.

Mark Seidenfeld, Playing Games with the Timing of Judicial Review: An Evaluation of Proposals to Restrict Pre-enforcement Review of Agency Rules, 58 Ohio St. L.J. 86 (1997). Professor Seidenfeld continues his prolific examination of the "ossification" of rulemaking (judicially caused inefficiencies in the adoption of new rules by agencies) through an extention of Jerry Mashaw's game theoretic analysis regarding the possible effects of delaying judicial review of new agency rules untill after the agency has had an opportunity to implement the rule. In contrast to Mashaw, Seidenfeld questions the social value of delaying judicial review in order to decrease ossification, and he identifies a number of offsetting detriments to such a program. He contends that if the likely penalty for violating the agency rule is less then the cost of complying with the rule, that the regulated entity is unlikely to comply. Hence a delayed review of the rule would not result in better information than had the court reviewed the rule at the time of its adoption. If the penalty for violating the rule exceeds the cost of complying with the rule, then delayed review may result in universal compliance to legally suspect rules. The article concludes that Congress, rather than the courts, is the proper body to determine whether or not delay of judicial review of new rules until the agency attempts to enforce them is in fact in the social interest.

State Administrative Law Articles

Edward McGonagle, Administrative Law (1995-96 Survey of New York Law), 47 Syracuse L. Rev. 299 (1997).

Jeffery R. Kirkpatrick (Note), Restraining Agency Action: Administrative Discretion and Adoption of Statutes by Reference in Clemens v. Harvey (247 Neb. 77, 1994), 75 Neb. L. Rev. 621 (1996).

Honorable Ellen A. Peters, Getting Away from the Federal Paradigm: Separation of Powers in State Courts, 81 Minn. L. Rev. 1543 (1997).

Elana Cunningham Wills, Can the Governor (or Other State Officeholder) Be Removed from Office in a Court Action After Being Convicted of a Felony?, 50 Ark. L. Rev. 221 (1997).