Regulatory Reform and the Chevron Doctrine: Can Congress Force Better Decisionmaking by Courts and Agencies

This Note examines recent legislative proposals for reform of the Chevron doctrine\u27 in federal administrative law and suggests an alternative solution that sets more definite boundaries delineating the roles of courts, agencies, and the public in questions of statutory interpretation. Part I of this Note provides background information on the problem of determining when courts should defer to government agencies on questions of statutory construction. It asserts that past legislative proposals are a valuable resource for addressing this problem. Part II uses the various opinions in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon to describe the interpretive confusion the Chevron doctrine has generated and the disagreement it has provoked among Supreme Court Justices and in the lower courts. Part III describes four major versions of Senate Bill 343 the 1995 Senate regulatory reform legislation, and examines how similar statutory modifications to the Chevron two-step review process would affect agencies and reviewing courts. Part IV combines elements of the specific proposals made in Senate Bill 343 in an attempt to improve on the existing Chevron doctrine by setting up a new framework for when a high level of deference to agency statutory interpretations is appropriate. The proposed system contains the following elements: (1) a specific part of the agency rule-making record devoted to the explanation of its chosen statutory interpretation, (2) a limitation of judicial review of permissible interpretations to those contained in the record, (3) placement of the burden for presenting alternative interpretations on outside commenters to a proposed rule, (4) broad deference to agency statutory interpretations that satisfy the new procedural requirements, and (5) only prospective application of the new requirements. If removed from the strict cost-benefit analysis requirements elsewhere in Senate Bill 343, a new system for reviewing agency statutory interpretations could address public concerns about government agencies\u27 power and discretion, yet prevent destabilization of the post-Great Society regulatory state. The next time that regulatory reform resurfaces in Congress is an opportunity to improve upon the decision-making processes of both agencies and their reviewing courts

Regulatory Reform and the Chevron Doctrine: Can Congress Force Better Decisionmaking by Courts and Agencies

This Note examines recent legislative proposals for reform of the Chevron doctrine\u27 in federal administrative law and suggests an alternative solution that sets more definite boundaries delineating the roles of courts, agencies, and the public in questions of statutory interpretation. Part I of this Note provides background information on the problem of determining when courts should defer to government agencies on questions of statutory construction. It asserts that past legislative proposals are a valuable resource for addressing this problem. Part II uses the various opinions in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon to describe the interpretive confusion the Chevron doctrine has generated and the disagreement it has provoked among Supreme Court Justices and in the lower courts. Part III describes four major versions of Senate Bill 343 the 1995 Senate regulatory reform legislation, and examines how similar statutory modifications to the Chevron two-step review process would affect agencies and reviewing courts. Part IV combines elements of the specific proposals made in Senate Bill 343 in an attempt to improve on the existing Chevron doctrine by setting up a new framework for when a high level of deference to agency statutory interpretations is appropriate. The proposed system contains the following elements: (1) a specific part of the agency rule-making record devoted to the explanation of its chosen statutory interpretation, (2) a limitation of judicial review of permissible interpretations to those contained in the record, (3) placement of the burden for presenting alternative interpretations on outside commenters to a proposed rule, (4) broad deference to agency statutory interpretations that satisfy the new procedural requirements, and (5) only prospective application of the new requirements. If removed from the strict cost-benefit analysis requirements elsewhere in Senate Bill 343, a new system for reviewing agency statutory interpretations could address public concerns about government agencies\u27 power and discretion, yet prevent destabilization of the post-Great Society regulatory state. The next time that regulatory reform resurfaces in Congress is an opportunity to improve upon the decision-making processes of both agencies and their reviewing courts

Repealing the Statute of Wizarding Secrecy in Legal Education

In the fictional Harry Potter universe, J.K. Rowling has fashioned a parallel world based on our own, but with the fundamental difference of a separate magical society grafted onto it. In Rowling’s fictional version, the magical population lives among the non-magical Muggle population, but we Muggles are largely unaware of them. This secrecy is by elaborate design and was brought about by centuries-long hostility toward wizards by the non-magical majority. But what if secrecy is precisely the wrong approach? What if widespread wizard-Muggle collaboration were precisely the thing needed to address the enormous and pressing problems of the day?The secrecy and exclusivity of the wizarding world, when combined with the similarities between Harry Potter-style magic and American law, make Rowling’s world a useful cautionary tale for legal education. This essay argues that law schools should reject their largely Hogwarts-style approach to the dissemination of legal knowledge in favor of increased educational paths appropriate to a liberal republican democracy invested in the rule of law. A modest but positive step in that direction is the establishment by law schools of legal master’s degree programs aimed at non-lawyer professionals. In a societal sense, these programs are a positive step in the direction of repealing the “statute of wizarding secrecy” that has long and implicitly accompanied legal education

Deconstructing Fiber-Optic Cables with JewishTart

The transistor must work. In fact, few futurists would disagree with the investigation of evolutionary programming, which embodies the private principles of programming languages. Here, we motivate new omniscient technology (JewishTart), disconfirming that model checking can be made stable, Bayesian, and certifiable. Such a hypothesis might seem unexpected but is derived from known results

Apple Pay, Bitcoin, and Consumers: The ABCs of Future Public Payments Law

As technology rolls out ongoing and competing streams of payments innovation, exemplified by Apple Pay (mobile payments) and Bitcoin (cryptocurrency), the law governing these payments appears hopelessly behind the curve. The patchwork of state, federal, and private legal rules seems more worthy of condemnation than emulation. This Article argues, however, that the legal and market developments of the last several decades in payment systems provide compelling evidence of the most realistic and socially beneficial future for payments law. The paradigm of a comprehensive public law regulatory scheme for payment systems, exemplified by Articles 3 and 4 of the Uniform Commercial Code, has faded in relevance, while federal law has grown in a specialized consumer protection role. Meanwhile, private contract law has expanded to fill gaps where payment technology has exceeded the scope of public law. The evidence of the successes and failures of payments law in the face of rapid technological development shows that the field is not best governed by comprehensive public regulation on the Uniform Commercial Code model, but that public law still has an important, albeit narrower, role for the future. The most beneficial paradigm for governance of payment systems is a division between (1) private law handling systemic matters of operation, and (2) public law focused on protecting payment system end-users from oppression, fraud, and mistake. This demarcation of lawmaking responsibilities has the greatest track record of success and is the most capable of dealing with a foreseeable future of unforeseeable innovations

Who Wants to Be a Muggle? The Diminished Legitimacy of Law as Magic

In the Harry Potter world, the magical population lives among the non-magical Muggle population, but we Muggles are largely unaware of them. This secrecy is by elaborate design and is necessitated by centuries-old hostility to wizards by the non-magical majority. The reasons behind this hostility, when combined with the similarities between Harry Potter-stylemagic and American law, make Rowling’s novels into a cautionary tale for the legal profession that it not treat law as a magic unknowable to non-lawyers. Comprehensibility — as a self-contained, normative value in the enactment interpretation, and practice of law — is given short-shrift by the legal profession. It deserves a far higher place of honor in the law of a liberal republic than it holds today, and lawyers above all ought not to underestimate the importance of this value. In the end, it behooves all in the legal wizards’ craft to make more concerted efforts in writing and in drafting of governing legal texts to aid the non-lawyer public in understanding them. Who wants to be a Muggle? No one, really. The ongoing and critical task of the legal profession is to ensure that governing legal texts and lawyers’ treatment of them do not suffer the vices that “make” non-lawyers into Muggles

Too Clever by Half: Reflections on Perception, Legitimacy, and Choice of Law Under Revised Article 1 of the Uniform Commercial Code

The overwhelmingly successful 2001 rewrite of Article 1 of the Uniform Commercial Code was accompanied by an overwhelming failure: proposed section 1-301 on contractual choice of law. As originally sent to the states, section 1-301 would have allowed non-consumer parties to a contract to select a governing law that bore no relation to their transaction. Proponents justifiably contended that such autonomy was consistent with emerging international norms and with the nature of contracts creating voluntary private obligations. Despite such arguments, the original version of section 1-301 was resoundingly rejected, gaining zero adoptions by the states before its withdrawal in 2008. This article contends that this political failure within the simultaneous success of Revised Article 1 was due in significant part to proposed section 1-301 invoking a negative visceral reaction from its American audience. This reaction occurred, not because of state or national parochialism, but because the concept of unbounded choice of law violated cultural symbols and myths about the nature of law. The American social and legal culture aspires to the ideal that “no one is above the law” and the related ideal of maintaining “a government of laws, and not of men.” Proposed section 1-301 transgressed those ideals by taking something labeled as “law” and turning on its head the expected norm of general applicability. Future proponents of law reform arising from internationalization would do well to consider the role of symbolic ideals in their targeted jurisdictions. While proposed section 1-301 made much practical sense, it failed in part because it did not — to an American audience — make sense in theory

Too Clever by Half: Reflections on Perception, Legitimacy, and Choice of Law Under Revised Article 1 of the Uniform Commercial Code

The overwhelmingly successful 2001 rewrite of Article 1 of the Uniform Commercial Code was accompanied by an overwhelming failure: proposed section 1-301 on contractual choice of law. As originally sent to the states, section 1-301 would have allowed non-consumer parties to a contract to select a governing law that bore no relation to their transaction. Proponents justifiably contended that such autonomy was consistent with emerging international norms and with the nature of contracts creating voluntary private obligations. Despite such arguments, the original version of section 1-301 was resoundingly rejected, gaining zero adoptions by the states before its withdrawal in 2008. This article contends that this political failure within the simultaneous success of Revised Article 1 was due in significant part to proposed section 1-301 invoking a negative visceral reaction from its American audience. This reaction occurred, not because of state or national parochialism, but because the concept of unbounded choice of law violated cultural symbols and myths about the nature of law. The American social and legal culture aspires to the ideal that “no one is above the law” and the related ideal of maintaining “a government of laws, and not of men.” Proposed section 1-301 transgressed those ideals by taking something labeled as “law” and turning on its head the expected norm of general applicability. Future proponents of law reform arising from internationalization would do well to consider the role of symbolic ideals in their targeted jurisdictions. While proposed section 1-301 made much practical sense, it failed in part because it did not — to an American audience — make sense in theory

Access to Law or Access to Lawyers? Master’s Programs in the Public Educational Mission of Law Schools

The general decline in juris doctor (“J.D.”) law school applicants and enrollment over the last decade has coincided with the rise of a new breed of law degree. Whether known as master of jurisprudence, juris master, master of legal studies, or other names, these graduate degrees all have a target audience in common: adult professionals who neither are nor seek to become practicing attorneys. Inside legal academia and among the practicing bar, these degrees have been accompanied by expressed concerns that they detract from the traditional core public mission of law schools—educating lawyers. This Article argues that non-lawyer master’s programs are not a distraction from the public mission of law schools, nor are they a necessary evil foisted upon legal education by economic trends. Rather, such degrees reflect a paradigm shift that law schools and attorneys should embrace rather than resist: a move away from law being accessed primarily through a licensed elite and toward a greater role for autonomy in public engagement with the legal system. The law school function of serving the public goes well beyond training future lawyers or even marshalling them in the service of access to justice. The expanded legal education vision advocated here includes those functions, but as part of a more encompassing mission. Law schools should aim to ensure access to law rather than simply access to lawyers. This Article then sets forth foundational frameworks for such programs to succeed at their goals, both at the programmatic level and at the course-design level