Administrative Change

Determining the standard of review for administrative actions has commanded judicial and scholarly interest like few other topics. Notwithstanding the extensive debates, far less consideration has been given to the unique features of agencies’ deviations from their own precedents. In this article we examine this puzzle of administrative change. By change, we mean a reversal of the agency’s former views about the best way to implement and interpret its regulatory mandate. We trace the lineage of administrative change at the Supreme Court and analyze features that distinguish agency reversals from other administrative actions. In particular, we contend that because administrative agencies have been given authority to make official pronouncements about the intrinsic meaning of legal texts, agency reversals can carry significant consequences for the rule of law. These consequences are linked to an under-appreciated feature of administrative action: the agency’s chosen mode of reasoning. Agencies sometimes use what we call prescriptive reasoning: weighing evidence, utilizing technical expertise, and making policy choices. At other times agencies undertake what we call expository reasoning: identifying congressional intent and the import of judicial opinions. While prescriptive reasoning yields conclusions about optimal policy, expository reasoning is concerned with what the law is. This distinction activates fundamental rule-of-law interests that should restrain an agency’s discretion to declare that the same document means X today, Y tomorrow, and Z the day after. This Article proposes a new theory and doctrine of administrative change that affords substantial deference in cases where change is based on prescriptive reasoning, but requires de novo scrutiny of reversals grounded in expository reasoning. The proposal strikes an appropriate balance between the need for agency flexibility and the importance of a stable rule of law. administrative law, statutory interpretation, interpretation, stare decisis, precedent, legal change, change, administrative change, rule of law, Chevron, Fox, deference, standards of review, arbitrary and capriciou

Safe Social Spaces

Technologies that mediate social interaction can put our privacy and our safety at risk. Harassment, intimate partner violence and surveillance, data insecurity, and revenge porn are just a few of the harms that bedevil technosocial spaces and their users, particularly users from marginalized communities. This Article seeks to identify the building blocks of safe social spaces, or environments in which individuals can share personal information at low risk of privacy threats. Relying on analogies to offline social spaces—Alcoholics Anonymous meetings, teams of coworkers, and attorney-client relationships—this Article argues that if a social space is defined as an environment characterized by disclosure, then a safe social space is one in which disclosure norms are counterbalanced by equally as powerful norms of trust that are both endogenously designed in and backed exogenously by law. Case studies of online social networks and social robots are used to show how both the design and law governing technosocial spaces today not only do not support trust, but actively undermine user safety by eroding trust and limiting the law’s regulatory power. The Article concludes with both design and law reform proposals to better build and protect trust and safe social spaces

Privacy, Accountability, and the Cooperating Defendant: Towards a New Role for Internet Access to Court Records

Now that federal court records are available online, anyone can obtain criminal case files instantly over the Internet. But this unfettered flow of information is in fundamental tension with many goals of the criminal justice system, including the integrity of criminal investigations, the accountability of prosecutors, and the security of witnesses. It has also altered the behavior of prosecutors intent on protecting the identity of cooperating defendants who assist them in investigating other targets. As prosecutors and courts collaborate to obscure the process by which cooperators are recruited and rewarded, Internet availability risks degrading the value of the information obtained instead of enabling greater public understanding. There is a growing body of scholarship considering the privacy implications of electronic access, but the literature has not yet addressed these issues from the perspective of the criminal justice system. This Article begins to fill that gap by focusing on the skittish responses of prosecutors and courts to the expanding availability of information that had always been public but was traditionally hard to obtain. Such evasion is particularly troubling in the context of cooperation, an important law enforcement tool that is essentially unregulated and susceptible to capricious application. The Article proposes an approach that pairs limitations on online access with systematic disclosure of detailed plea and cooperation agreements in their factual context, with identifying data redacted. This proposal would protect privacy and security, while enabling the public and press to engage in genuine government oversight

Notice-and-Comment Judicial Decisionmaking

Executive branch agencies typically use a process of notice-and-comment to permit the public to respond to the proposed text of rules. The legal literature has not considered whether a similar process would be helpful for the judicial branch. In this Article, Professors Abramowicz and Colby argue that it would be. Neither the parties to a litigation nor third parties generally have an opportunity to comment on judicial opinions after they are drafted but before they are made final. As a result, judicial opinions often contain errors and frequently have far-ranging and unanticipated negative consequences. A notice-and-comment system could mitigate these concerns, and could also help to constrain judges to follow the rule of law and to improve the legitimacy of the judicial process

Health Law and Administrative Law: A Marriage Most Convenient

This symposium explores the complex relationship between health law and administrative law. It is based on the observation that these two fields of law are peculiarly intertwined. It attempts to understand why this is so, as well as whether it is necessary and whether it is desirable. Would we as a society, that is, be better off if health law were less permeated by administrative law? Even if we would be better off, is it indeed possible to extricate health law from administrative law? This essay begins by defining health law and administrative law. It then proceeds to describe the function of law, the institutions through which law is made and applied, and how law is made and applied in the health - care industry, demonstrating the prominent role of administrative entities in health care. It next examines why the close relationship between health law and administrative law exists. In particular, it considers and rejects the thesis that this close relationship is an artifact of history. The article goes on to develop an alternative hypothesis that administrative entities play a major role in overseeing the delivery and finance of health care because of the need for such oversight and the lack of superior institutional alternatives. This essay concludes by considering why this permeation of health law by administrative law is likely to continue, and why this may not be such a bad result

Rethinking the Presumption of Constitutionality

One of the judiciary\u27s self-imposed limits on the power of judicial review is the presumption of constitutionality. Under that presumption, courts supply any conceivable facts necessary to satisfy judicially created constitutional tests. The Supreme Court has given three reasons for the presumption: to show due respect to legislative conclusions that their enactments are constitutional, to promote republican principles by preventing courts from interfering with legislative decisions, and to recognize the legislature\u27s institutional superiority over the courts at making factual determinations. This Article argues that the presumption does not sensibly implement these reasons. It further argues that these reasons equally, if not more strongly, support judicial deference to legislative interpretations of the Constitution, and consequently that courts should revisit their refusal to defer to such interpretations. Reprinted by permission of the publisher

Rethinking the Presumption of Constitutionality

One of the judiciary\u27s self-imposed limits on the power of judicial review is the presumption of constitutionality. Under that presumption, courts supply any conceivable facts necessary to satisfy judicially created constitutional tests. The Supreme Court has given three reasons for the presumption: to show due respect to legislative conclusions that their enactments are constitutional, to promote republican principles by preventing courts from interfering with legislative decisions, and to recognize the legislature\u27s institutional superiority over the courts at making factual determinations. This Article argues that the presumption does not sensibly implement these reasons. It further argues that these reasons equally, if not more strongly, support judicial deference to legislative interpretations of the Constitution, and consequently that courts should revisit their refusal to defer to such interpretations. Reprinted by permission of the publisher

Cognitive Illiberalism and Institutional Debiasing Strategies

This article investigates institutional debiasing strategies that may work to further minimize conflict in society over labor and employment law decisions. In this vein, Part II seeks to distill the essentials of culturally motivated cognition and how it relates to, yet differs from, other earlier studies on the role that values and assumptions play in labor and employment law cases. Part III then comprehensively explores a spectrum of debiasing strategies for legal decisionmakers, from opinion-writing debiasing strategies to institutional strategies involving specialized courts and judges. Finally, Part IV considers the arguments against such institutions, and finally, the promise of opacity in the judicial selection process