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ADMINISTRATIVE & REGULATORY LAW NEWS


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Recent Articles of Interest

Akhil Reed Amar, Some Opinions on the Opinion Clause, 82 Virginia L. Rev. 647 (1996). The Opinion Clause of the Constitution reads in part: "The President...may require the opinion, in writing, of the principal Officer in each of the executive departments, upon any subject relating to the duties of their respective offices." Article II, Section 2. In this essay Professor Amar contends that the Opinion Clause provides significant insights into the "scope, limits and nature of the American Presidency" by establishing a Presidential role that is significantly different from the function served by either a King or Prime Minister. The author suggests that the Opinion Clause should be read as a showing that unlike a King, the President does not lord over a Privy Council; and unlike a Prime Minister, the President is more than first among equals. Rather, the clause exemplifies the President's power to supervise the executive branch, and in so doing creates a type of executive accountability based upon the individual responsibility of the President and his officers.

Marshall Breger, Government Accountability in the 21st Century, 57 U. Pitt. L. Rev. 423 (1996). Mr. Breger theorizes that advances in computer and media technology not only increase the ability of the populace to gain information on the actions of the government, but also facilitate the devolution of political power to state and local entities. The author contends that technological advances will not produce a more "bureaucratic centralized society" dominated by highly educated elites; rather he envisions a society in which services like Nexis and Westlaw level the political playing field by providing instant information regarding government actions to a broad cross-section of the public. Mr. Breger concludes by predicting that the future of administrative law will revolve around ensuring the smooth succession of private industry into formerly governmental functions. Thus he looks forward to a twenty-first century practice concerned with the administrative law of privatization.

Thomas Hammond and Jack Knott, Who Controls the Bureaucracy?: Presidential Power, Congressional Dominance, Legal Constraints, and Bureaucratic Autonomy in a Model of Multi-Institutional Policy-Making, 12 J.L. Econ. & Org. 119 (1996). This article presents a formal model of "multi-institutional policy-making" in an attempt to answer the question of who, if anyone, controls the federal bureaucracy? The authors begin by examining existing arguments as to whether the President, Congress, the courts, or the agencies themselves, control agency action. This analysis is then compiled into an explicit theory of how the President, Congress and the courts, interact with the bureaucracy in creating public policy. This interactional process is then identified as the only actual constraint upon agency action. Hence the authors conclude that control of the federal bureaucracy is a systemic function of the federal government as a whole and not the domain of one particular governmental "branch."

Hugo Hopenhayn and Susanne Lohmann, Fire-Alarm Signals and the Political Oversight of Regulatory Agencies, 12 J.L. Econ. & Org. 196 (1996). The authors use the term "fire-alarm signals" to describe the phenomena of political principals with imperfect information making use of informational cues from external sources (such as the media or interest groups) to help monitor agency action. The article then examines how the asymmetric existence of fire-alarms creates bias and inconsistency in regulatory oversight. To test this theory, the authors create a regulation game --as a model of delegation and oversight-- in which all factors are symmetrical except for the fire alarm signals encountered by an agency's political principal. The model suggests that to the extent that external informational cues vary across agencies, or over time, regulatory policies will be inconsistent. Since asymmetric fire-alarm signals introduce bias into regulatory policy, the authors conclude that regulatory efficiency requires an improvement in the information provided by fire-alarms.

Ronald M. Levin, Direct Final Rulemaking, 64 Geo. Wash. L. Rev. 1 (1995). "Direct final rulemaking" is a streamlined variation on the normal notice-and-comment model of APA rulemaking. To use this procedure, an agency publishes a rule in the Federal Register and states that the rule will become effective unless the agency receives an objection within a short stated interval, such as thirty days. If no one objects, the rule can become law without further effort on the agency's part. This article recommends that agencies make broad use of direct final rulemaking in situations in which a rule is expected to be entirely noncontroversial. The article describes agencies' early experience with the technique, defends the permissibility of the technique under existing law, and offers suggestions as to how agencies should employ it.

Jonathan Macey and Geoffrey Miller, Reflections on Professional Responsibility in a Regulatory State, Geo. Wash. L. Rev. 1105 (1995). Professors Macey and Miller offer a law and economics analysis of the ethical framework encountered by lawyers involved in agency litigation. The analysis begins with an examination of how rules of ethics and notions of professional responsibility combine with market mechanisms to control lawyer behavior in the private sector. Contrasted with this model of the ethical framework for most private sector lawyers is the position of the lawyer whose clients interact with administrative agencies. These lawyers encounter unique ethical problems when the long-term interest of their firm requires that they maintain a congenial relationship with the regulatory agency, while their client would be best served by an aggressive strategy. Macey and Miller label this type of lawyer-capture the "repeat-player problem" and contend that an absence of market controls serves to exacerbate the potentials for abuse in this circumstance. Lastly, the authors identify the unique ethical environment encountered by lawyers representing regulatory agencies. Agency lawyers have a particularly difficult ethical duty for three reasons: (1) lack of traditional market controls on their behavior; (2) the difficulty in monitoring their behavior created by the nebulous nature of both their client and their client's interests; and (3) the problem of "bureaucratic drift" in which agency objectives differ from the original purposes of the agency.

John F. Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 Col. L. Rev. 612 (1996). This article examines the doctrine of Bowles v. Seminole Rock and Sand, 325 U.S. 410 (1945), which establishes that judicial deference should be given to an agency's interpretations of its own regulations. This is distinguished from the Chevron doctrine which provides that reviewing courts should defer to reasonable agency interpretations of ambiguities in statutes implemented by the agency. While Chevron has received unprecedented academic commentary, Seminole Rock has been largely ignored despite its significant impact on practice of administrative law. Mr. Manning provides a critique of Seminole Rock, arguing that it sanctions a dangerous threat to liberty by circumventing the Constitutional doctrine of separation of powers. Seminole Rock allows agencies to both write the law and interpret what the law means, thus circumventing judicial review. The author posits that this process invites post hoc rulemaking and provides inadequate notice to affected parties. He suggests a remedy of moving towards the analysis of Skidmore v. Swift Co., 323 U.S. 134 (1944), in which courts give deference to an agency interpretation to the degree that the interpretation is: (1) thorough; (2) valid in its reasoning; and (3) consistent with earlier pronouncements by the agency.

Jerry Mashaw, Reinventing Government and Regulatory Reform: Studies in the Neglect and Abuse of Administrative Law, 57 U. Pitt. L. Rev. 405 (1996). In this article Professor Mashaw paints a bleak picture of recent Executive and Congressional "regulatory reform" efforts. He contends that Vice President Gore's National Performance Reviews (NPRs) are characterized by a neglect for the legality of administrative processes in an effort to "cut red tape." In this way Executive attempts at regulatory reform stress efficacy to the detriment of legality. Mashaw then argues that Congress is attempting to increase legal constraints on agency actions as a tactic designed to hamstring procedurally agency decisionmaking. In other words, legality is being used to destroy efficacy. Both of these attempts at regulatory reform ignore what Mashaw identifies as the distinguishing characteristic of agency actions: that pursuit of the common good requires inefficiencies that simply are not present in private-sector attempts to meet the desires of customers. Hence both attempts at reform create a false dichotomy between how a program should be run and the objectives of the program. Worst of all, Mashaw believes that this Executive neglect and Congressional abuse of administrative law combine to produce the synergistic effects of incompetence and illegality in agency decisionmaking.

Douglas C. Michael, Cooperative Implementation of Federal Regulations, 13 Yale J.Reg. 535 (1996). Professor Michael examines regulatory programs in which the federal government leaves many compliance decisions up to the regulated entities themselves. Drawing on prior research and theory in the area, he concludes that such "cooperative implementation" is feasible if three principles are observed: (1) regulatory standards are written to leave discretion in methods of compliance and that discretion is within the competence of the regulated entities; (2) there are economic incentives to offset the additional costs to these entities; and (3) the entities self-report their own compliance, the agency closely monitors the program, and the agency maintains a residual program of traditional surveillance and direct enforcement. Next, Professor Michael examines existing programs which fall within the definition of "cooperative implementation" programs. These programs include voluntary and mandatory programs of self-enforcement and self-reporting in workplace safety and health, air and water pollution control, food safety, and transportation safety. In each instance, those programs that conform most closely to the three principles are more successful. Moreover, those programs that were not wholly successful failed to satiny one or more of these principles. The Article concludes with general recommendations on how to expand the use and ensure the success of cooperative e implementation.

J. B. Ruhl, Complexity Theory as a Paradigm for the Dynamical Law-and-Society System: Wake-Up Call for Legal Reductionism and the Modern Administrative State, 45 Duke L. J. 849 (1996). Is chaos theory an empty-headed fad or an important new way of looking at familiar problems? In this article Professor Ruhl suggests that the study of nonlinear dynamical systems, now known as complexity theory, holds important meaning for legal theory and institutions, particularly the institutions of administrative law. For those unversed in the field, Ruhl provides a primer on complexity theory by outlining what current research in other disciplines is revealing about how phenomena as diverse as the weather, ecosystems, economies, and chemical reactions behave. Although these and other systems may be governed by immutable rules of behavior, they often exhibit behavior that is unpredictable. Complexity theory has focused on why that is so, and has revealed why systems that avoid becoming excessively ordered and rigid--that is, systems in which unpredictable behavior flourishes--are the most adaptive and robust in the long run. Ruhl argues that administrative law has evolved so as to violate this property of dynamical systems, and is paying the price by becoming top heavy and centralized at the expense of remaining adaptive. He points to the dilution of the nondelegation doctrine, the proliferation of narrow-focus "expert" agencies, and the principles of legislative and judicial deference to administrative decision making as primary culprits in this erosion of adaptability, and contends that these doctrines have evolved as a result of social aversion to the unpredictable qualities of a more dynamical system. His solutions are three-fold and interrelated: (1) make common law, which Ruhl contends is more adaptive than regulation, our first response to social issues; (2) where common law is not fully effective and thus regulation is necessary, put teeth back into the nondelegation doctrine in order to restore decision making adaptability in Congress; and (3) where administrative involvement is needed, minimize deference to administrative decisions through such measures as restoring the legislative veto power invalidated in Chadha, altering the Chevron test to require agencies to justify their interpretations of laws, and beefing up the standards of review under the Administrative Procedure Act. Ruhl argues that by flipping the preferences of the administrative state in this manner--making administrative regulation our least preferred response--legal institutions will exhibit more long-term adaptability, albeit more often in unpredictable ways.

Charles Tiefer, Controlling Federal Agencies by Claims on Their Appropriations? The Takings Bill and the Power of the Purse, 13 Yale J. Reg. 501 (1996). The "takings" bills considered by Congress contain a new method for funding private takings claims brought against the federal government. Previously, constitutionally-based claims were paid either from a permanently-appropriated, government-wide "judgment fund" on an entitlement basis or from specifically earmarked funds. Under a new "claims-on-agency-appropriations" approach, statutorily-based takings claims will affect directly on agencies' personnel funds -- even if the agency in question is fulfilling its legally mandated mission. In the light of possible executive branch counterresponses, Professor Tiefer examines the separation of powers implications of this new mechanism with regard to three interests: faithful execution o f the laws: public fiscal control; and compensation of private claims. He concludes that the courts should let interbranch conflicts triggered by the new mechanism be resolved by the political processes the operate within the arena of the fiscal constitution.

Keith Werhan, Delegalizing Administrative Law, 1996 U. Ill. L. Rev. 423. This article relates contemporary efforts to reform federal administrative policymaking with recent changes in the federal courts' approach to their responsibility to review the legality of agency action. These changes coalesce into a movement toward "delegalization" of administrative law, by which the author means the purposeful effort by policymakers and judges to free agencies from the binding norms that control the process and content of their decisionmaking. The cumulative impact of these revisions is to undermine the agency's role as the central decisionmaker in shaping and implementing public policy, as well as to compromise the role of the judiciary as guarantor of the legitimacy and legality of that policy. Thus, when taken together, these changes signal a profound rethinking of the administrative process. This rethinking fundamentally challenges the traditional model of administrative law, and with it, the understanding of the rule of law that makes the administrative state acceptable to American society.

Administrative Law, 29 Suffolk U. L. Rev. 541 (1995) . A Survey of Rhode Island law for the 1994-95 term.

Twenty-Seventh Annual Administrative Law Issue, 45 Duke L. J. 1089 (1996). Reed E. Hundt, The Public's Airwaves: What does the Public Interest Require of the Television Broadcasters?; J. M. Balkin, Media Filters, the V-Chip, and the Foundations of Broadcast Regulation; Private Interests in "Public Interest" Programming: an Economic Assessment of Broadcaster Incentives; Ronald J. Krotoszynski, Jr., Into the Woods: Broadcasters, Bureaucrats, and Children's Television Programming.

9 Admin. L. J. of the Am. Univ. No. 4, Winter 1996 -- George Bermann, Regulatory Cooperation between the European Commission and U.S. Administrative agencies, Mark Grunewald, Freedom of Information and confidentiality under the Administrative Dispute Resolution Act, Ann Hodges, Dispute Resolution under the Americans with Disabilities Act: a Report to the Administrative Conference of the U.S., William Kratzke, Some Recommendations Concerning Tort Liability of Government and its Employees for Torts and Constitutional Torts; Kevin Phillip Cichetti, Note, Reading out the "Knowingly" from the "knowingly violates" in the CWA; George Fraley, Note, Is the Fox Watching the Henhouse? The Administration's Control of FEC Litigation Through the Solicitor General.

10 Geo. Immigr. L.J. 1 (1996) 10th Anniversary Special Symposium Edition, Reforming the Administrative Naturalization Process: Reducing Delays While Increasing Fairness: Susan Girardo Roy, Preface; Rep. Xavier Becerra, H.R. 3323, Proud to be an American Citizen Act of 1996; Arnold Rochvarg, In Defense of Naturalization Reform; John Miller, Dumbing Down Naturalization; Monique van Stiphout, Immigration Reform on the Hill: A Current Legislative History of the Immigration in the National Interest Act (H.r. 2202) and the Immigration Reform Act of 1995 (S.1394); Anna Law, Race, Ethnicity, and National Origins in Public Policy: When Should it Matter?;Karen Narasaki, Testimony on the Immigration Reform Act of 1995 Before the Subcommittee on Immigration, U.S. Senate Judiciary Committee; Gerald Neuman, Effects of the Immigration Revision on Children; Philip Schrag, Don't Gut Political Asylum; Michele Pistone, Asylum Filing Deadlines: Unfair and Unnecessary; David Rosen, Should a Federal Agency Violate Legislative Policy?; Daniel Sutherland, the Federal Immigration Bureaucracy: the Achilles Heel of Immigration Reform.


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