Regulation as Delegation: Private Firms, Decisionmaking, and Accountability in the Administrative State

Administrative agencies increasingly enlist the judgment of private firms they regulate to achieve public ends. Regulation concerning the identification and reduction of risk-from financial, data and homeland security risk to the risk of conflicts of interest-increasingly mandates broad policy outcomes and accords regulated parties wide discretion in deciding how to interpret and achieve them. Yet the dominant paradigm of administrative enforcement, monitoring and threats of punishment, is ill suited to oversee the sound exercise of judgment and discretion

\u3ci\u3eChevron\u3c/i\u3e\u27s Two Steps

The framework for judicial review of administrative interpretations of regulatory statutes set forth in the landmark Chevron U.S.A. v. Natural Resources Defense Council decision prescribes two analytic inquiries, and for good reason. The familiar two-step analysis is best understood as a framework for allocating interpretive authority in the administrative state; it separates questions of statutory implementation assigned to independent judicial judgment (Step One) from questions regarding which the courts role is limited to oversight of agency decisionmaking (Step Two). The boundary between a reviewing court\u27s decision and oversight roles rests squarely on the question of statutory ambiguity. For while courts, using traditional tools of statutory interpretation, should decide directly whether statutory language permits or clearly excludes the possibility of a given agency interpretation, judges must withdraw to a supervisory role when agency choices fall within a zone of ambiguity left by congressional instructions. In that oversight role, courts may ask whether an agency employed appropriate processes or reasoning in making an interpretive choice. But if the choice was reached in a reasonable manner, judges must let the administrative interpretation stand. Thus defining the areas of ambiguity within which agencies possess primary interpretive authority constitutes a – if not the – central component of judges\u27 independent Step One task

Implementing GDPR in the Charity Sector: A Case Study

Due to their organisational characteristics, many charities are poorly prepared for the General Data Protection Regulation (GDPR). We present an exemplar process for implementing GDPR and the DPIA Data Wheel, a DPIA framework devised as part of the case study, that accounts for these characteristics. We validate this process and framework by conducting a GDPR implementation with a charity that works with vulnerable adults. This charity processes both special category (sensitive) and personally identifiable data. This GDPR implementation was conducted and devised for the charity sector, but can be equally applied in any organisation that needs to implement GDPR or conduct DPIAs

\u3ci\u3eChevron\u3c/i\u3e\u27s Two Steps

Contrary to a suggestion by Professors Matthew Stephenson and Adrian Vermeule ( Chevron has Only One Step, forthcoming in Va. L. Rev.), Chevron v. NRDC\u27s model for judicial review of agency interpretations of regulatory statutes involves two steps – and for good reason. The two-step analysis provides a framework for allocating interpretive authority in the administrative state, by separating those questions of statutory implementation assigned to independent judicial judgment (Step One) from those regarding which courts\u27 role is limited to oversight of agency decisionmaking (Step Two). At Chevron\u27s first step, courts should begin by identifying whether congressional instructions clearly either require or preclude a choice the agency has made or, instead, whether the agency\u27s choice falls within a range of possibilities permitted by language that Congress has left ambiguous. Agency interpretations that do not fall within the zone of indeterminacy permitted by the statute\u27s language must be struck down. Once courts determine, however, that the existence of ambiguity has placed primary authority for a matter in agency hands, and that the scope of that ambiguity permits the agency choice, the judicial role moves from decision to oversight, and thus to Chevron\u27s second step. At this step, Section 706(2) of the Administrative Procedure Act sets the general standard, and courts inquire as to whether the agency\u27s judgment on a matter within its delegated authority is reasonable