Review of “Jurisdictional” Issues Under the Bumpers Amendment

The proposed Bumpers Amendment to the Administrative Procedure Act would encourage courts to be less deferential than they have previously been toward federal agencies\u27 views on issues of law. With regard to jurisdictional questions, the amendment would go further: it would invite courts not only to assert their independence, but also to disfavor agencies\u27 positions. Professor Levin regards this special rule of construction for jurisdictional questions as an attempt to achieve deregulation through judicial review. He criticizes this strategy as poorly conceived and calls attention to several weaknesses in the draftsmanship of the jurisdiction provision

Nonlegislative Rules and the Administrative Open Mind

The author\u27s main purpose here is to discuss the openmindedness that agencies are required to maintain towards the positions that they announce in nonlegislative rules. The author will offer a few observations about the circumstances in which this attitude is required, what agencies should do to maintain it, and how courts might police this obligation

Administrative Judges and Agency Policy Development: The Koch Way

Among the creative contributions that the late Charles H. Koch, Jr., made to administrative law thinking was his exploration of the present and potential role of administrative judges as policymakers. Charles stood in firm opposition to recent trends that, in his view, had served to strengthen the policymaking role of administrative judges at the expense of agency heads. He insisted that ultimate control over the policy direction of a program should rest with the officials who have been appointed to administer that program. While adhering to this baseline, however, Charles gravitated over time toward a nuanced view that sought to define an affirmative role for administrative judges in the policymaking process. He suggested, for example, that these judges could be helpful to agencies by initiating proposals for new directions and by building records that would enable agencies to appraise those proposals. In this sense, he argued, administrative judges could work in collaboration with, rather than at cross-purposes with, the agencies to which they are answerable. This memorial essay aims to review Charles’s analysis of this generally neglected topic and to contribute a few additional insights to the discussion. After examining the background issue of where ultimate policy control should rest, the essay describes and evaluates several of Charles’s ideas for refinement of the role of administrative judges as policymakers. In addition, the essay takes up related questions regarding agencies’ use of regulations and guidance documents to circumscribe the policy choices that administrative judges make

Crafting a Class: The Trade Off Between Merit Scholarships and Enrolling Lower-Income Students

[Excerpt] It is well-known that test scores are correlated with students’ socio-economic backgrounds. Hence to the extent that colleges are successful in “buying” higher test score students, one should expect that their enrollment of students from families in the lower tails of the family income distribution should decline. However, somewhat surprisingly, there have been no efforts to test if this is occurring. Our paper presents such a test. While institutional level data on the dollar amounts of merit scholarships offered by colleges and universities are not available, data are available on the number of National Merit Scholarship (henceforth NMS) winners attending an institution on scholarships that have been funded by the institution itself, rather than the National Merit Scholarship Corporation (henceforth NMSC). These institutional scholarships are awarded to high test score students only if they attend the institution. Our research strategy is to estimate if an increase in the number of recipients of these scholarships at an institution is associated with a decline in the number of students from lower and lower middle income families attending the institution, other factors held constant. We measure the number of these students by the number of Pell Grant recipients attending the institution

Vacatur, Nationwide Injunctions, and the Evolving APA

The courts’ growing use of universal or nationwide injunctions to invalidate agency rules that they find to be unlawful has given rise to concern that such injunctions circumvent dialogue among the circuits, promote forum shopping, and leave too much power in the hands of individual judges. Some scholars, joined by the Department of Justice, have argued that such judicial decisions should be limited through restrictive interpretations of the Administrative Procedure Act (APA). This Article takes issue with these authorities. It argues that the courts’ use of the APA to vacate a rule as a whole—as opposed to merely enjoining application of the rule to an individual plaintiff—serves vital functions in maintaining judicial control over agency discretion. The Article goes on to argue that such relief is consistent with the language and legislative background of the APA. However, courts have discretion as to whether they will make use of this remedy in individual cases. Starting from these premises, the Article surveys factors that can militate for or against universal relief in particular circumstances. It also suggests possible doctrinal adaptations and structural reforms that could contribute to preventing overuse of universal injunctions

The Regulatory Accountability Act and the Future of APA Revision

This article seeks to take stock of the Regulatory Accountability Act (RAA), a set of proposals to amend the Administrative Procedure Act (APA). House and Senate versions of the proposed Act have been pending in Congress since 2011, although the impending advent of Democratic control of the House may halt further progress on the bills in their present form. Some provisions in the RAA are desirable or at least supportable, because they would codify elements of current practice or make minor repairs to the APA. But other aspects of the bill are controversial and troubling. Among them are sections that would provide for (1) trial-type hearings on certain issues in proceedings to promulgate especially consequential rules; (2) mandatory findings and analyses in all notice-and-comment rulemakings; (3) judicially enforced requirements for cost-benefit analyses in major rulemakings; (4) curtailment of Auer deference; and (5) substantial evidence review of some major rules. The article examines some of the policy and drafting problems with these latter provisions. It concludes with some reflections on reasons why the RAA proponents headed in unproductive directions and how the process of APA revision could be improved in the future

The Administrative Law Legacy of Kenneth Culp Davis

Kenneth Culp Davis, one of the twentieth century\u27s outstanding authorities on administrative law, passed away in September 2003. This commemorative essay surveys his manifold contributions to the field. The concept that is most often associated with his name, the distinction between adjudicative facts and legislative facts, is still a crucial reference point in analyses of the right to be heard in judicial or administrative proceedings. His influence has been felt in a number of other areas as well. During the past few decades, for example, administrative adjudication has become more streamlined, rulemaking has become more widely employed, and obstacles to obtaining judicial review, such as standing and ripeness defenses, have been relaxed. Davis played a large role in promoting each of these developments. Some of his other initiatives, such as his efforts to tame the administration of discretionary justice, have been less successful. The essay concludes with a suggestion that Davis\u27s ideas, influential as they were, might have had even greater impact if the legal system had not, in recent times, veered away from the kind of open-ended judicial common lawmaking that much of his work presupposed

Administrative Law Pragmatism

I decided that I would spend some time today explaining what I mean by this notion of pragmatism in the context of administrative law and how it has played out in my writing. The word “pragmatism” can have a variety of meanings, ranging from formal philosophy to popular usage. In the field of law, pragmatism commonly means a perspective that evaluates policies by looking at how they work out in practice. The test of a good policy, according to this view, is that it leads to beneficial real-world outcomes. It can be helpful to contrast pragmatism with formalism and various ideologically driven approaches: the pragmatist tends to mistrust positions that people take “on principle” if those advocates do not take account of how their positions work out in practice