Reason-Giving, Rulemaking, and the Rule of Law

The requirement that agencies give reasons for their actions and in support of their interpretations in administrative law serves important Rule of Law values. It forces agencies to consider how and whether their actions can be justified and provides a means of accountability, allowing the public to judge the agency actions by the reasons offered. One of the areas where reason-giving is most debated is in the face of a new administration that seeks to alter, amend, or repeal a rule that has already gone through the strenuous notice and comment rulemaking process. Administrative law allows such changes so long as the new interpretation is reasonable and so long as the new rule follows the same notice and comment processes to replace the old.If there is not a single unambiguous interpretation of a statute, then Chevron necessarily opens the door to the possibility of multiple reasonable interpretations which means that an agency might still be reasonable even if it adopts different interpretations at different times. Thus, a shift in agency interpretation is not per se invalid, but it is still subject to reason-giving hurdles. Curiously, the courts have generally not required a heightened standard of reason-giving to change a rule from an earlier adopted one. The agency need not prove that its new rule is better, just that it is reasonable as much as the first rule only had to show that it flowed from a reasonable interpretation (not necessarily proving itself as the best interpretation).The recent U.S. Supreme Court case of Encino Motorcars, LLC v. Navarro revisited these standards. This Article examines that case and how its holdings fit within existing precedent to remind us of the standards at play for reason-giving in administrative law. If it had not been clear before, Encino starkly places reason-giving in its rightful place as a fundamental prerequisite to a complete and lawful notice-and-comment rulemaking process. If an agency does not fulfill the reason-giving requirement then it has not completed the process necessary for its action to carry the force of law. But the Article concludes that it is unlikely that Encino heightened the reason-giving standards, including for changes in policy precipitated by new presidential administrations.Nevertheless, the Article advocates for a greater agency sensitivity to the benefits of going beyond what is legally required in reason-giving to add credibility to agency decision-making. Robustly providing reasons and thoroughly explaining changes goes a long way to increasing legitimacy for agency rules and for encouraging public buy-in for the regulations offered. Those are outcomes that agencies should strive to achieve even if the law is not mandating such a higher level of persuasion

Strategic Institutional Positioning: How We Have Come to Generate Environmental Law Without Congress

When examining legislation authorizing administrative agencies to promulgate rules, we are often left asking whether Congress “delegates” away its lawmaking authority by giving agencies too much power and discretion to decide what rules should be promulgated and to determine how rich to make their content. If the agencies get broad authority, it is not too hard to understand why they would fulsomely embrace the grant to its fullest. Once agencies are let loose by broad grants of rulemaking authority and they are off to the races, we are also often left scratching our heads wondering why Congress fails to intervene ex post to alter the law, to check administrative agency overreach, or to clarify its intent and preferences. This Essay explains why none of the institutional dynamics we observe in administrative law should be surprising, with particular emphasis on environmental laws and rules. It will explain why both Congress and agencies have strategic interests at stake that cause them to position their activities in manners that make each complicit in expansion of the regulatory state and the collapse of the containment walls designed to keep lawmaking inside Congress. The essay introduces fundamental ideas of separation of powers and the Framers’ design for adherence to that separation. It identifies motivations for Congress to legislate broadly and to disengage from a supervisory role over agencies, despite contrary intentions in the Framers design. It discusses agencies as self-interested actors that will accept legislative-like authority if it is offered to them. And, it uses case studies on National Monuments and the Waters of the United States (WOTUS) Rule as demonstrative of the strategic positioning phenomenon. In particular, the essay explains why environmental law is an area where we can predict a high frequency of these problems of congressional abdication that enables administrative overreach.Adapted from a speech on a panel about “Environmental Law without Congress: Are Alternatives to Legislation Eclipsing the Congressional Role in Setting Policy Priorities for Environmental Protection?”, the goal of this Essay is to explore the threat these institutional interests pose to preservation of the separation of powers and to begin identifying the areas to target in order to bring the current allocation of authority for generating the core requirements of environmental law into better alignment with the original constitutional design

The Market to Roam: Using Sharing Economy Platforms for Expanding Roaming Access to Land Resources

This Article proposes a framework for a market to roam, where technology-facilitated bargaining leads to transfers of roaming rights and the provision of access across private lands. Such a system can borrow from what we know about traditional land use cooperation platforms, together with what we are learning from the sharing economy and its use of technology platforms to assist with matching owners of under-utilized resources with individuals interested in accessing or using those resources. The Article engages with property law debates over the capability of the property system to support subdivision of rights, or sticks, in the property rights bundle. New sharing economy mechanisms are demonstrating just how such technologies can make transactions in subdivided property bundles more accessible to owners and users of property. Expanded access to interact with ecological resources while roaming on private lands could be obtained through strong exclusion rights facilitated by innovative technologies and organizational models that help foster greater inclusion through easy and accountable access rights. The Article concludes that an exclusion rights-based market to roam is superior for achieving the ecological and other ends progressive property scholars seek when advocating for mandatory access and free roaming rights

The Commenting Power: Agency Accountability through Public Participation

Whether you are a member of the resistance movement or a cheerleader for the new Trump Administration’s regulatory reform agenda, this Essay intends to engage your passion. (Of course, scholars, students, and agency officials should be interested too.) The notice and comment rulemaking process governing the creation of most regulations generated by federal agencies includes an obligation that agencies respond to public comments. This public participation requirement, with its “two way street” obligation to dialogue, is a critical check on agency power. The laws in this area are ones about which anyone interested in regulation should know more. Describing general precedents, including two recent exemplar cases from the D.C. Circuit on April 11, 2017 and July 18, 2017, this Essay provides a critical tutorial for anyone interested in getting involved — for or against regulatory change. It helps one understand why what this Essay dubs the “commenting power” is so critical in our democratic republic

Special International Zones in Practice and Theory

The French Republic had a problem. Foreign nationals had flown into the Roissy-Charles de Gaulle Airport near Paris and claimed the right to stay as refugees seeking asylum. Unwilling to have the supposed refugees imposed upon it, France resolved to process their claims without letting them into the country. How? By keeping them in the airport’s international transit zone—the area between the exit doors of airplanes arriving from abroad and the far side of customs and immigration clearance. This split border allowed France to summarily process and (typically) deport the foreigners while keeping them outside the country’s territory for asylum purposes. When detainees got seriously ill, France created so-called “floating international zones” to take them to a local hospital, a portion of which became a temporary international zone. These French innovations in border control inspired Hungarian transit zones, Australian migration zones, and similar partial territories across the planet. Few people beyond government attorneys and human rights workers have heard of that particular kind of special international zone, but most people know of the airport transit zone—an area where foreign travelers can catch connecting flights without going through local border controls and buy goods free of local customs, duties, or taxes. Research uncovers still other institutions that aspire to rise above merely local rules, including the United Nation’s headquarters and CERN laboratories. Each of these species fits within a more general genus, the special international zone (“SIZ”): An area that its host nation state places outside of its territory for the purpose of some local laws, leaving other such laws and applicable international obligations in force. Special international zones already exist in great number and variety. They continue to spread, grow, and adapt. This article introduces SIZs as objects worthy of study on many counts, but most particularly because SIZs offer nation states a mechanism for selectively unbundling their territorial services in response to necessity, the constraints of international law, and promotion of the public good

Pride & Property: An Interdisciplinary Analysis of Their Symbiotic Relationship

Pride and property are mutually reinforcing, symbiotic concepts through which individuals express their identity in a biologically, economically, and psychologically driven manner that generates evolutionarily advantageous conditions. This Article is the first to extensively examine the correlative components of pride and property ownership. It is an interdisciplinary treatment of pride and property — engaging with law, economics, psychology, evolutionary biology, evolutionary psychology, and philosophy. The grossly under-studied “authentic”, achievement-oriented, and motivational variety of pride (as contrasted with the much-vilified “hubristic” kind) has recently been heralded as perhaps the most important human emotion for evolutionary purposes. The Article explains that authentic pride is adaptive, functional, and manifests itself in evolutionarily beneficial ways — including through its interaction with property. The Article also outlines the mechanics of a pride based-utility function.Property has acquisitional and expressive functions, allowing ownership to be both the repository of pride-based utility and also useful as a vehicle through which evolutionarily-beneficial authentic pride can be expressed. Property can act as a “pride display” that signals status-deservedness to the greater community, enhancing the prospects of group acceptance critical to evolutionary fitness. Although literature has discussed property as integrated with one’s self-identity and personhood, and while recent research on pride has recognized its fundamental relationship to the self, very little if any existing analysis ties those two strands together to analyze pride in property as identity development and to evaluate the motivational role pride plays in the acquisition, maintenance, and improvement of property. This Article seeks to fill that void. It explores ways we might maximize the influence of the utility-enhancing aspects of the pride emotion and examines how we can find new appreciation for the role that identity and our emotions play in how we experience, manage, govern, and protect property

Playing with Real Property Inside Augmented Reality: Pokemon Go, Trespass, and Law\u27s Limitations

This symposium essay uses the popular game Pokémon Go as a case study for evaluating conflicts that arise when augmented reality is layered over the real property of non-consenting owners. It focuses on the challenges augmented reality technologies pose to the meaning and enforcement of formal and informal trespass norms, first examining physical trespass issues (and enforcement difficulties) associated with game players who sometimes break physical property boundaries.The essay then undertakes a thought experiment regarding possible recognition of a new, different type of trespass—one to augmented space. Pollock and Maitland called trespass the “fertile mother of all actions,” often breeding new or enlarged doctrines across the common law. Perhaps trespass has new breeding to do, providing the genetic material upon which the common law can birth new doctrines that preserve our private property values while adapting to technological advances. We could imagine allocating rights such that owners of physical real property are empowered to exclude others from augmented layering of their property. Only if property owners have “opted in” would any gaming company be permitted to make another’s property an integral part of its augmented reality game. Financial incentives could emerge to make it beneficial for many property owners to choose inclusion of augmented layering. The number of willing properties opting-in might then make the game manageable without the need for layering over the properties of non-consenting owners.Experimental legal innovations aside, the essay concludes with a focus on the evolution of informal norms furthering trespass avoidance. Trespass is an ideal case study of a type of action that already is more often deterred by informal social norms than by law. This the essay concludes by explaining why these informal normsand an appeal to civility may be the best ways to control unwanted augmented reality interference with property owners in the real, physical world