The Mead Doctrine: Of Rules And Standards, Meta-Rules And Meta-Standards

In United States v. Mead Corp. the Supreme Court sought to prescribe a test for determining when the Chevron doctrine applies to agency interpretations of law. The Court got off to a good start, announcing that Chevron applies when Congress has delegated authority to an agency to make rules having the force of law, and the agency has adopted an interpretation pursuant to this authority. Unfortunately, the Court was less than clear about when Congress has delegated the required authority, applying a vague standard that incorporates such elements as whether Congress has directed the agency to use relatively formal procedures, whether the agency adopts a rule of decision that generalizes to more than a single case, and whether the agency\u27s decisional rules apply uniformly throughout its jurisdiction. This paper argues that the scope of the Chevron doctrine should be governed by a meta-rule, rather than a multifactorial standard as suggested in Mead. The paper also proposes a meta-rule: Congress should be deemed to delegate authority to an agency to make rules with the force of law when Congress has provided by statute that agency action, once final, will give rise to sanctions, forfeitures, or other adverse legal consequences for parties who violate that action

The Judicial Prerogative

In John Locke\u27s account of separation of powers, the executive is not limited to enforcing the rules laid down by the legislature. The chief magistrate also exercises the prerogative, a power to act according to discretion for the public good, without the prescription of the law and sometimes even against it. Locke explained that such a discretionary power is required because it is impossible to foresee and so by laws to provide for all accidents and necessities that may concern the public, or make such laws as will do no harm, if they are executed with an inflexible rigor on all occasions and upon all persons that may come in their way. Given their experience with George III, it is not surprising that the Framers of the United States Constitution failed to embrace Locke\u27s executive prerogative. The Supreme Court, for its part, has also rejected it. The Founders of this Nation entrusted the lawmaking power to the Congress alone in both good times and bad, Justice Black wrote in his opinion for the Court in the Steel Seizure Case. Justice Black concluded that the President enjoys no inherent power to act in default of Congress; his authority must in every case stem either from an act of Congress or from the Constitution itself. The question I address in this paper is whether the conclusion reached by Justice Black in the Steel Seizure Case applies with equal force to the judicial branch of the federal government. That is to say, do principles of separation of powers embodied in the Constitution permit federal courts to exercise a judicial prerogative – a power to promulgate federal rules of decision according to discretion for the public good, without the prescription of the law and sometimes even against it – or are federal courts, like the President, constrained to act only pursuant to authority found in enacted law

Incomplete Compensation for Takings

If a tribunal determines that a state actor has expropriated foreign investment property, or, under Chapter 11 of the North American Free Trade Agreement (NAFTA), that a state actor has adopted a regulation that is tantamount to an expropriation of foreign investment property, then that tribunal must determine the amount of compensation owed. International law has developed methods to determine the size of a compensation award when a state formally expropriates property. But the notion, reflected in Chapter 11 of NAFTA, that states may be required to pay compensation to foreign investors for what are, in effect, regulatory takings, is barely in its infancy. Consequently, the standards for determining the measure of compensation for international regulatory takings are also extremely underdeveloped. Valuation techniques that have been developed in the context of formal expropriation may not translate readily to regulations that leave possession undisturbed, but reduce the value or profitability of property. The most obvious source to look to for guidance in determining the measure of compensation under international law is domestic takings law. The largest and best-developed body of such law is undoubtedly American constitutional law. The Fifth Amendment of the United States Constitution, which has been in effect for over 200 years, requires the payment of just compensation for takings of property. For the last eighty of those years, it has been established that regulations may, in certain circumstances, impair property values so severely as to constitute a taking. When one examines American compensation law, however, one finds that here too there is little guidance about how to measure just compensation in regulatory takings cases. At most, American law suggests some plausible models that can be adapted to the regulatory takings context

Rescuing Federalism after \u3ci\u3eRaich\u3c/i\u3e: The Case for Clear Statement Rules

The Rehnquist Court\u27s federalism jurisprudence began with a focus on clear statement rules, but then turned to prohibitory limits on the scope of federal power. This Article specifies the differences between clear statement rules and prohibitory limitations, and outlines some of the factors courts should consider in determining which strategy to pursue in any given context. The Article argues that the scope of the Commerce Clause is an issue that should be resolved using clear statement rules. The Court\u27s decision in United States v. Lopez to follow a prohibitory approach was both strategically mistaken and poorly executed. Although the principles the Court established in Lopez have been largely eviscerated by Gonzales v. Raich, the Court now has the opportunity to consider whether to turn to a strategy of clear statement rules. Such an approach would put Commerce Clause jurisprudence on a sounder footing, and could be achieved without upsetting the results in any of the major decisions in the post-Lopez era

Preemption and Institutional Choice

Public law scholarship is increasingly turning from questions about the content of law to questions about which institution should determine the content of the law – that is, to deciding who decides. Implicit in this turn is the understanding that public law – including broadly not just constitutional law, but also administrative law and statutory interpretation – consists of norms that are contestable and changing. In a world of normative flux, the question naturally occurs: Who should be responsible for say[ing] what the law is? The answer traditionally given by American legal academics – the federal courts, and especially the Supreme Court – may or may not be the best choice in any given context. Other possible agents of norm articulation – the constitutional amendment process, Congress, the President, administrative agencies, state governments, world organizations, markets – also need to be considered and evaluated on a comparative basis. The law of preemption is ripe for reconsideration in light of this kind of comparative institutional analysis. At least two broad trends support this inference. First, a number of Supreme Court decisions have suggested, at least implicitly, that preemption questions should be redirected from the courts to Congress. In Cipollone v. Liggett Group, Inc., for example, Justice Stevens\u27s opinion for the Court stated that when Congress has enacted an express preemption clause, this should provide the exclusive basis for decision, rather than any doctrine of implied preemption. This proposition, if consistently applied, would promote the view that preemption should be primarily a matter of legislative determination. Other decisions have applied a presumption against preemption unless a clear and manifest purpose of Congress to preempt can be discerned. This presumption, if consistently applied, would also shift authority for making preemption decisions from the courts to Congress. A second trend suggesting the need for an institutional choice analysis is a growing controversy about whether courts should defer to the views of administrative agencies on the preemptive effect of statutes and regulations. The Supreme Court dodged the issue in Watters v. Wachovia Bank, N.A., which presented the question whether a preemptive regulation issued by the Office of the Comptroller of the Currency (OCC) was entitled to Chevron deference by reviewing courts. Five Justices, speaking through Justice Ginsburg, concluded that it was unnecessary to reach this question because the statute itself compelled preemption. Three dissenting Justices – Justice Stevens joined by Chief Justice Roberts and Justice Scalia – would have decided the question and held that agencies are not entitled to Chevron deference for preemption determinations. Controversy has also been stirred by the practice of federal agencies offering advisory opinions about the preemptive effect of federal statutes and regulations. Products liability defendants have urged courts to defer to these views. The Supreme Court again recently avoided determining how much weight courts should give such views as advanced by the Food and Drug Administration (FDA), but has granted review in yet another case which now may require that it revisit the issue in the FDA context. Obviously, a general practice of deferring to administrative agencies on questions of preemption would shift authority for resolving preemption controversies away from courts toward agencies

The Story of \u3ci\u3eChevron\u3c/i\u3e: The Making of an Accidental Landmark

Chevron U.S.A. Inc. v. NRDC is one of the most famous cases in administrative law, but it was not regarded that way when it was decided. To the justices who heard the case, Chevron was a controversy about the validity of the bubble concept under the Clean Air Act, not about the standard of review of agency interpretations of statutes. Drawing on Justice Blackmun\u27s papers, Professor Merrill shows that the Court was initially closely divided, but Justice Stevens\u27 opinion won them over, with no one paying much attention to his innovations in the formulation of the standard of review or his invocation of Presidential oversight as a reason to regard agencies as more appropriate interpreters than courts. Chevron was almost instantly seized upon as a major decision by the D.C. Circuit, however, and after establishing itself as a leading case there, it migrated back to the Supreme Court, where it eventually came to be regarded as a landmark decision by the Court that rendered it. The Story of Chevron raises interesting questions about the role of accidents and self-interested promotion in the making of great cases, as well as about how judicial mutations have shaped the development of administrative law

High-Level, "Tenured" Lawyers

Debates over the future of the civil service are usually couched in terms of a trade-off between accountability and impartiality. If that were all at stake, I would tend to take the accountability side, at least insofar as government lawyers are concerned. To put the matter in the larger framework so ably developed by my colleague Steve Calabresi in this symposium, government lawyers must serve as "advocates"and "ambassadors"for the incumbent Administration's political/legal viewpoints, and these roles surely require a strong dose of accountability-stronger than one ever gets from tenured lawyers. I have argued, however, that there should be another dimension to the debate: what might be called the trade-off between transience and stability. High level tenured lawyers bring a long-term perspective to legal problems that is lacking in political lawyers. This long-term perspective generates various forms of institutional capital associated with the values of predictability, consistency, protection of reliance interests, and respect for tradition. These values are especially important in matters of government. Government ultimately rests on coercion. With the threat of coercion in the background, legal arguments will be more persuasive if they are leavened with a healthy respect for continuity with the past. Thus, political lawyers will perform more effectively if they are backstopped by high-level tenured lawyers, who bring with them a natural tendency to promote continuity. This enhanced effectiveness applies, moreover, regardless of which function political lawyers are asked to perform-including advocating the President's constitutional vision

Judicial Opinions as Binding Law and as Explanations for Judgments

To what extent does the executive branch have autonomous powers of legal interpretation? The issue is often broadly framed in terms of two disparate understandings of the allocation of interpretative power: judicial supremacy and departmentalism. In this paper, I shall speak of two different understandings of judicial opinions: the idea that judicial opinions (or at least the holdings of opinions) are legally binding on actors in the executive branch, and the idea that opinions are, from the perspective of executive actors, merely explanations for judicial judgments. I adopt this locution because it focuses more precisely on the core of the controversy over autonomy in executive interpretation. Most persons agree that the executive branch has an obligation to enforce valid final judgments rendered by the judiciary. What has been, and remains, controversial is whether the executive is bound to follow the understanding of law set forth in judicial opinions in future controversies involving persons not party to a judicial judgment. Consequently, in order to determine whether the executive has autonomous powers of interpretation, it is necessary to examine the nature of the executive obligation to the understanding of law set forth in judicial opinions. I will argue that the nature of that obligation cannot be resolved by examining pronouncements bearing on the subject by past Supreme Court Justices or Presidents. Nor can the answer be deduced from provisions of the Constitution, from specific judicial precedents, or from assumptions about the nature of the judicial hierarchy. Attempts to resolve the question using these types of arguments ultimately beg the underlying issue in dispute. Moreover, although the fundamental question is jurisprudential in nature, I will not seek to resolve it by linguistic or logical analysis. Instead, I will offer two distinct lines of argument – one coherentist and the other consequentialist – each of which provides some support for the conclusion that judicial opinions ought to be regarded, at least by executive actors, as explanations for judgments

Accession and Original Ownership

Although first possession is generally assumed to be the dominant means of establishing original ownership of property, there is a second but less studied principle for initiating ownership, called accession, which awards new resources to the owner of existing property most prominently connected to the new resource. Accession applies across a wide variety of areas, from determining rights to baby animals and growing crops to determining ownership of derivative rights under intellectual property laws. Accession shares common features with first possession, in that both principles assign ownership uniquely in a way that imposes minimal information cost burdens on society. But accession differs from first possession in that it does not presuppose that rights are established in an open access commons and does not require the performance of an act to establish ownership. These features of accession make it, as a rule, more efficient than first possession, at least where property rights are thick and securely enforced. More broadly, accession can be seen as the critical legal principle that generates the internalization function of property, insofar as gains and losses attributable to the management of resources are automatically assigned to the most prominently connected property by accession. Although the story of accession is generally a positive one from an efficiency perspective, it may be more problematic from several normative perspectives, which are briefly considered