Sticky Regulations and Net Neutrality Restoring Internet Freedom

Stable law is valuable, yet also remarkably lacking in our nation’s internet policy. Over the last two decades, the Federal Communications Commission (FCC) has charted a zigzagging course between heavier and lighter regulation. Last year, the U.S. Court of Appeals for the District of Columbia Circuit largely upheld the agency’s latest shift—this time toward deregulation. But in 2016, that same court upheld the agency’s shift in the opposite direction. And to top it all off, some predict that after political control of the White House shifts, the FCC may again reverse course and reinstate a policy similar to what the FCC has recently overridden. The upshot of this series of policy reversals is that it is difficult for anyone to make long-term investment decisions premised on any particular internet policy because that policy may not have a long shelf life. This makes it harder for the private sector to plan and for the FCC to encourage investment. This Essay, however, is not about internet policy. Rather, it uses this example to examine stickiness more broadly, as well as whether and how that stickiness can or should be increased. To the extent, for instance, that we believe that greater stability is sufficiently valuable, which is debatable, it may make sense to revisit aspects of administrative law that make it relatively easy for agencies to reverse course, including adding more procedural steps or requiring better explanations to change policy. Ultimately, however, administrative law likely will not be able to create stability for controversial, highly-salient issues. When it comes to achieving the social benefits of stability, rulemaking is a poor substitute for legislation

How Agencies Choose Whether to Enforce the Law: A Preliminary Investigation

One of the most controversial aspects of administrative law in recent years concerns agency decisions not to enforce the law. Such nonenforcement is often beneficial or, in any event, inevitable. A particular violation may be so distant from what Congress or the agency had in mind when the general prohibition was put on the books that enforcement makes little sense. Likewise, because agencies have finite resources, they cannot enforce the law in all situations. At the same time, however, nonenforcement can also raise difficult questions about basic notions of fairness and administrative regularity, as well as separation of powers concerns. Nonenforcement decisions can be particularly significant, moreover, because they often are not subject to judicial review. Despite the importance of the topic, however, little empirical work has been done on the processes agencies use to evaluate potential nonenforcement. This Article has three purposes. First, drawing on interviews and survey data, it offers a preliminary real-world look into how a number of agencies choose whether to enforce the law in the context of waivers, exemptions, and prosecutorial discretion. The evidence suggests that nonenforcement is heterogeneous across numerous dimensions—including who is involved in the process, the steps the agency must take to make a nonenforcement decision, the scope of nonenforcement, and the potential for public and judicial scrutiny of the agency’s decision. Second, this Article begins to sketch a taxonomy of nonenforcement. Although nonenforcement is often treated as a unitary concept, in fact it comes in many flavors, some of which are more dangerous than others. Finally, building on this taxonomy, this Article urges safeguards to prevent nonenforcement’s abuse. Most significantly, nonenforcement should be rare and requests for it should serve as a signal that retrospective review may be in order

Visualizing Change in Administrative Law

Although few realize it, the structure of administrative law has not changed much in two decades. Unlike past eras of upheaval, the key statutes, institutions, and judicial doctrines that defined administrative law in the early 1990s remain remarkably intact today. Administrative law\u27s complexity, however, makes it difficult to see the big picture. This Article addresses that complexity by introducing a new visual framework. This framework has two principal benefits. First, it illustrates how administrative law\u27s many parts fit together and shows that the field has been in a holding pattern for a long time. Second, it also allows scholars to better predict future regulatory evolution. Indeed, by applying this new framework, it appears that at least three dynamics may change today\u27s administrative law: Partisan Escalation, Regulatory Competence, and New Protectionism

Narrowing Chevron’s Domain

Chevron deference has become increasingly controversial. Some Justices on the Supreme Court have stated that they would overrule Chevron, and others have urged that it be curtailed. If Chevron were merely modified rather than overturned, it is unclear what that modified Chevron would look like. This Article argues that the time has come to narrow Chevron’s domain by limiting Chevron deference to interpretations announced in rulemaking and not those announced in adjudication. Under the classic formulation of Chevron, a court should defer to an agency’s reasonable interpretation of ambiguous statutory language. This formulation is grounded in the notion that Congress, at least implicitly, signals a preference for agency rather than judicial decisionmaking when it delegates broad policymaking discretion as part of charging an agency with implementing and administering a statute. In United States v. Mead Corp., the Supreme Court began defining what has come to be known as Chevron’s domain—holding that Congress did not intend courts to defer to every agency resolution of statutory ambiguity, but rather only to those articulated in agency actions that carry legal force and thus reflect the exercise of delegated power. As a consequence of the Mead Court’s analysis, courts typically defer under the Chevron standard to interpretations offered in notice-and-comment rulemakings and in formal adjudications, and apply the less deferential Skidmore standard in reviewing those advanced through less formal formats like interpretative rules and policy statements. Meanwhile, interpretations announced via informal adjudications represent a gray area for Mead’s analysis. With the benefit of hindsight, we believe that Mead did not go far enough in curtailing Chevron’s reach. Applying Chevron to interpretations announced through adjudication has proven problematic in practice and has fueled a great deal of the anti-Chevron criticism. Meanwhile, Chevron’s claim to stare decisis in the context of adjudications is surprisingly weak. Using a novel dataset of cases, this Article shows that the Supreme Court has applied Chevron only rarely in evaluating agency adjudications. We submit that this relative dearth of precedent is best explained by the fact that Chevron makes the most conceptual sense when applied to agency rulemakings. Accordingly, if the Court is looking for a way to address deference short of eliminating it, the soundest way to revisit Chevron is by narrowing its domain to exclude most if not all agency adjudications

The Future of Chevron Deference

Syftet med examensarbetet var att undersöka och få kunskap om förskollärarnas tankar kring pedagogisk dokumentation och reflektion i förskolan. Vår första frågeställning utgick från förskollärarnas åsikter om vad pedagogisk dokumentation hade för betydelse i verksamheten. Den andra och tredje frågeställningen inriktade sig på hur förskollärarna tolkade begreppet reflektion samt vad de ansåg att den hade för betydelse i förskolan. Den sista frågeställningen fokuserades på vilka erfarenheter förskollärarna hade av just reflektion i förskolan. Vi genomförde tio kvalitativa intervjuer i tre olika kommuner. Förskollärarna hade en ålder mellan 25-63 år och de avslutade förskollärarutbildningen vid olika tillfällen. Intervjuresultaten visade att det fanns möjligheter och svårigheter med både pedagogisk dokumentation och reflektion i förskolan. Pedagogiska dokumentationer möjliggjorde för att både barnens och pedagogernas synvinklar kunde lyftas fram. Det visade även den utveckling och lärande som förekom i verksamheten. Resultatet uppvisade också att förskollärarna hade olika uppfattningar om hur reflektioner skulle gå till. Informanterna var eniga om att det kunde synliggöra hela förskolans verksamhet. Förskollärarna hade däremot varierande erfarenheter kring hur reflektionen kunde ta form i förskolan

A Qualified Defense of Qualified Immunity

In recent years, two new fronts of attack on qualified immunity have emerged. This Essay responds to both and provides a qualified defense of qualified immunity. Part I addresses Will Baude’s argument that qualified immunity finds no support in positive law. Part II turns to Joanna Schwartz’s pioneering empirical work that has been marshaled to question qualified immunity’s effectiveness as a matter of policy. These two sets of criticisms—a one-two punch that qualified immunity is both unlawful and ineffective—merit serious consideration and further investigation. Neither, however, is dispositive; there are important counterpoints that merit further analysis. But ours is a qualified defense, as qualified immunity is by no means perfect. Based on our empirical work on qualified immunity in the circuit courts, we conclude with some recommendations on how the Supreme Court should improve the doctrine to better ensure it advances its intended objectives