Presidential Control, Expertise, and the Deference Dilemma

Courts reviewing agency action frequently point to superior political accountability and expertise as justifying deference to agencies. These fundamentals of deference often operate in tandem, providing distinct but complimentary reasons why courts will not substitute their judgment for that of agencies. But when courts review agency actions arising from shared regulatory space, political accountability—often expressed as presidential control—and expertise can seem at odds. How should courts respond when, for example, one agency lays claim to presidential control but another relies on expertise, and the two take inconsistent positions so that a court must choose one over the other? This Article examines this deference dilemma and suggests a means for confronting it. Overall, this analysis reveals that the expertise and presidential-control justifications for deference do not fit neatly into statutory schemes involving overlapping or competing jurisdiction, particularly when an independent agency is involved. This conclusion exposes weaknesses in both models of deference and supports the claim that—presidential direction and expertise notwithstanding—fidelity to statute and the reasoned-decisionmaking requirements remain the touchpoints of judicial review. These touchpoints are central to unlocking the deference dilemma and resolving it in a principled manner, as demonstrated by the framework developed in this Article. Approaching deference dilemmas in this way helps facilitate congressional control while recognizing the policymaking authority of the executive branch, and ultimately contributes to a norm that accounts for the roles of all three branches in administrative law

The Administrative Law of Regulatory Slop and Strategy

Judicial review of agency behavior is often criticized as either interfering too much with agencies’ domains or doing too little to ensure fidelity to statutory directives and the rule of law. But the Trump administration has produced an unprecedented volume of agency actions that blatantly flout settled administrative-law doctrine. This phenomenon, which we term “regulatory slop,” requires courts to reinforce the norms of administrative law by adhering to established doctrine and paying careful attention to remedial options. In this Article, we document numerous examples of regulatory slop and canvass how the Trump agencies have fared in court thus far. We contend that traditional critiques of judicial review carry little force in such circumstances. Further, regulatory slop should be of concern regardless of one’s political leanings because it threatens the rule of law. Rather than argue for a change to substantive administrative-law doctrine, therefore, we take a close look at courts’ remedial options in such circumstances. We conclude that a strong approach to remedies can send corrective signals to agencies that reinforce both administrative-law values and the rule of law

Nuclear Power, Risk, and Retroactivity

The 2011 Fukushima nuclear disaster presented a familiar scenario from a risk perception standpoint. It combined a classic “dread risk” (radioactivity), a punctuating event (the disaster itself), and resultant stigmatization (involving worldwide repercussions for nuclear power). Some nuclear nations curtailed nuclear power generation, and decades-old opposition to nuclear power found a renaissance. In these circumstances, risk theory predicts a regulatory knee-jerk response, potentially resulting in inefficient overregulation. But it also suggests procedural palliatives that conveniently overlap with administrative law values, making room for the engagement of the full spectrum of stakeholders. This Essay sketches the U.S. regulatory response to Fukushima. From a positive perspective, this story provides a useful case study for understanding administrative agencies’ responses to disasters and the concomitant role of risk perception. But this story also invites using an administrative law lens to take a fresh look at the issues of retroactivity and stakeholder engagement. This Essay concludes by identifying insights as well as research needs for regulatory responses to disaster as well as classic administrative law

Court-Agency Dialogue: Article III\u27s Dual Nature and the Boundaries of Reviewability

Courts reviewing agency actions frequently offer more than a positive analysis of the agencies decisions. They might engage in advice-giving, for example, or emper the remedy as a way of modulating the impact of review. These actions can be used in a dialogic way, to provide normative signals to agencies. Yet because courts must judge agency actions only on the grounds provided by the agency at the time of the agency’s decision — and must ordinarily remand actions that fail to meet substantive standards of review — these normative signals require a delicate touch so as to avoid judicially imposed policy preferences and any chipping away at Article III values. In his excellent study of the ordinary remand rule, Professor Christopher J. Walker traces the development of the rule and constructs a taxonomy of dialogic tools that might profitably accompany remands. This Response praises Professor Walker’s contribution to the literature, and suggests several areas for future study. In particular, this Response emphasizes the dual nature of Article III — consisting both of powers and resistance norms — and suggests that a full account of court/agency dialogue ought to be mindful of this duality. Further, this Response suggests that agency actions at the edges of reviewability offer a unique focal point for considering how the competing Article III concerns operate. And finally, this Response cautions that taken too far, dialogic tools can undermine judicial responsibility and agencies’ constitutional legitimacy

Nuclear Power, Risk, and Retroactivity

The 2011 Fukushima nuclear disaster presented a familiar scenario from a risk perception standpoint. It combined a classic dread risk (radioactivity), a punctuating event (the disaster itself), and resultant stigmatization (involving world wide repercussions for nuclear power). Some nuclear nations curtailed nuclear power generation, and decades-old opposition to nuclear power found a renaissance. In these circumstances, risk theory predicts a regulatory knee-jerk response, potentially resulting in inefficient overregulation. But it also suggests procedural palliatives that conveniently overlap with administrative law values, making room for the engagement of the full spectrum of stakeholders. This Article sketches the U.S. regulatory response to Fukushima. From a positive perspective, this story provides a useful case study for understanding administrative agencies\u27 responses to disasters and the concomitant role of risk perception. But this story also invites using an administrative law lens to take a fresh look at the issues of retroactivity and stakeholder engagement. This Article concludes by identifying insights as well as research needs for both regulatory responses to disaster and classic administrative law

Double Deference in Administrative Law

Administrative law presumes a neat system of agency rulemaking and adjudication followed by judicial review. But the reality of the administrative state departs starkly from this model. One such departure is the use of audited self-regulatory organizations (SROs) -- private organizations comprised of specific industries that formulate binding law to regulate themselves. Although SROs operate subject to the oversight of federal agencies, their power is vast, reaching significant swaths of the national and international economies. There is little to constitutionally constrain such arrangements, and whereas the administrative law model values the norms of participation, deliberation, and transparency, the procedures used by SROs depart from these norms in important ways. Moreover, oversight agencies are deferential to SROs, and courts in turn are deferential to the oversight agencies. This doubling of deference both undermines accountability and fails to adequately guard against arbitrariness. This Article brings a much-needed administrative law lens to SROs, providing both a positive and theoretical account of SROs and exposing flaws in the model. To better ameliorate these concerns, this Article illustrates how existing administrative law can more comprehensively account for SROs and offers a series of institutional design considerations for furthering administrative law norms in the future

Court-Agency Dialogue: Article III\u27s Dual Nature and the Boundaries of Reviewability

Courts reviewing agency actions frequently offer more than a positive analysis of the agencies decisions. They might engage in advice-giving, for example, or emper the remedy as a way of modulating the impact of review. These actions can be used in a dialogic way, to provide normative signals to agencies. Yet because courts must judge agency actions only on the grounds provided by the agency at the time of the agency’s decision — and must ordinarily remand actions that fail to meet substantive standards of review — these normative signals require a delicate touch so as to avoid judicially imposed policy preferences and any chipping away at Article III values. In his excellent study of the ordinary remand rule, Professor Christopher J. Walker traces the development of the rule and constructs a taxonomy of dialogic tools that might profitably accompany remands. This Response praises Professor Walker’s contribution to the literature, and suggests several areas for future study. In particular, this Response emphasizes the dual nature of Article III — consisting both of powers and resistance norms — and suggests that a full account of court/agency dialogue ought to be mindful of this duality. Further, this Response suggests that agency actions at the edges of reviewability offer a unique focal point for considering how the competing Article III concerns operate. And finally, this Response cautions that taken too far, dialogic tools can undermine judicial responsibility and agencies’ constitutional legitimacy

Public Participation in Risk Regulation: The Flaws of Formality

Dread risks draw significant public attention in both the administrative process and the courts. Yet there are a number of dysfunctions at the intersection of procedures, participation, and agency decision-making regarding such risks. This Article elaborates the participatory dysfunctions for dread risk regulation, considering formal APA procedures as well as casting complexity as a variety of formality. Inspired by recent executive actions for improving participation and incorporating social science insights into the regulatory process, this Article sets a research agenda that spans the fields of risk perception, procedural justice, and administrative law

Nuclear Power, Risk, and Retroactivity

The 2011 Fukushima nuclear disaster presented a familiar scenario from a risk perception standpoint. It combined a classic “dread risk” (radioactivity), a punctuating event (the disaster itself), and resultant stigmatization (involving worldwide repercussions for nuclear power). Some nuclear nations curtailed nuclear power generation, and decades-old opposition to nuclear power found a renaissance. In these circumstances, risk theory predicts a regulatory knee-jerk response, potentially resulting in inefficient overregulation. But it also suggests procedural palliatives that conveniently overlap with administrative law values, making room for the engagement of the full spectrum of stakeholders. This Essay sketches the U.S. regulatory response to Fukushima. From a positive perspective, this story provides a useful case study for understanding administrative agencies’ responses to disasters and the concomitant role of risk perception. But this story also invites using an administrative law lens to take a fresh look at the issues of retroactivity and stakeholder engagement. This Essay concludes by identifying insights as well as research needs for regulatory responses to disaster as well as classic administrative law