• Selected
• Entire List

Abstract:
This article begins by noting the difficulty courts have had in trying to determine whether a rule adopted without notice and comment, which the agency claims is an interpretive rule or statement of policy, is really such a rule or is instead a legislative rule that is invalid because it failed to go through notice and comment. This judicial dilemma occurs in two circumstances: one is when a person wishes to establish the invalidity of a rule on procedural grounds, asserting that because the agency failed to engage in notice and comment on the rule, the rule must be invalid, but the agency responds that the rule is interpretive or is a statement of policy exempt from notice and comment; the other circumstance is when a person challenges an agency action on the grounds that is contrary to an agency 'rule,' but the agency responds that the rule is not 'legislative' and therefore does not bind the agency. In both circumstances, the agency wishes to show that the rule is non-legislative, while the private party wishes to show the rule is legislative. The article proposes a simple test to replace the multiple and confusing tests currently used by courts, which provide little predictability to outcome and little guidance to agencies. That test is simply that if the agency did not use notice-and-comment rulemaking and claims the rule is interpretive or is a statement of policy, then the rule is a non-legislative rule exempt from notice and comment. Responding to the expected criticism that this would enable agencies to evade notice-and-comment rulemaking even while making substantive policy, the article emphasizes that currently courts focus on the wrong issue - the procedural validity of the rule, rather than focusing on the substantive validity of the rule. The article then provides a number of examples drawn from recent or historic cases to show that such a new approach would safeguard against agency abuse, while providing a clear and predictable guide to agencies. The article concludes by demonstrating some circumstances where the current judicial approach results in anomalous results.

administrative law, rulemaking, interpretive rules, judicial review

Abstract:
This article begins by noting the difficulty courts have had in trying to determine whether a rule adopted without notice and comment, which the agency claims is an interpretive rule or statement of policy, is really such a rule or is instead a legislative rule that is invalid because it failed to go through notice and comment. This judicial dilemma occurs in two circumstances: one is when a person wishes to establish the invalidity of a rule on procedural grounds, asserting that because the agency failed to engage in notice and comment on the rule, the rule must be invalid, but the agency responds that the rule is interpretive or is a statement of policy exempt from notice and comment; the other circumstance is when a person challenges an agency action on the grounds that is contrary to an agency 'rule,' but the agency responds that the rule is not 'legislative' and therefore does not bind the agency. In both circumstances, the agency wishes to show that the rule is non-legislative, while the private party wishes to show the rule is legislative. The article proposes a simple test to replace the multiple and confusing tests currently used by courts, which provide little predictability to outcome and little guidance to agencies. That test is simply that if the agency did not use notice-and-comment rulemaking and claims the rule is interpretive or is a statement of policy, then the rule is a non-legislative rule exempt from notice and comment. Responding to the expected criticism that this would enable agencies to evade notice-and-comment rulemaking even while making substantive policy, the article emphasizes that currently courts focus on the wrong issue - the procedural validity of the rule, rather than focusing on the substantive validity of the rule. The article then provides a number of examples drawn from recent or historic cases to show that such a new approach would safeguard against agency abuse, while providing a clear and predictable guide to agencies. The article concludes by demonstrating some circumstances where the current judicial approach results in anomalous results.

administrative law, rulemaking, interpretive rules, judicial review

Abstract:
The Foreign Intelligence Surveillance Act (FISA) has been much in the news. Because the requirements for a judicial warrant under FISA do not require the traditional showings for electronic surveillance for law enforcement purposes, one of the issues relating to EISA is the extent to which surveillance under that Act may be undertaken for the purposes of criminal law enforcement, rather than for obtaining foreign counterintelligence or counterterrorism information. This issue became particularly salient after 9/11 when at the administration's urging Congress passed an amendment to KISA in the USA PATRIOT Act that eliminated the previous requirement that "the purpose" of the surveillance was to obtain foreign intelligence information and replaced it with the requirement that "a significant purpose" be to obtain such information.

This Article traces the history of EISA's adoption and subsequent practice to show that the original intent of EISA, recognized by the government and confirmed by the courts, was that the primary purpose for the surveillance had to be the gathering of foreign intelligence, including intelligence concerning international terrorism, rather than obtaining evidence for use in criminal trials. The Article then describes how EISA was later misconstrued by employees in the Justice Department, and later by the Foreign Intelligence Surveillance Court, to erect a so-called wall between intelligence and law enforcement officers that was not only not required by EISA but contrary to its purpose and history. Some have attributed much of the blame for the 9/11 intelligence failure to the existence of this "wall," creating a perceived need to amend EISA to eliminate the wall through the amendment of the "purpose" requirement in the USA PATRIOT Act. This Article demonstrates how that amendment was unnecessary and suggests that the amendment raises other constitutional issues with respect to FISA.

electronic surveillance, Fourth Amendment, terrorism, intelligence, spying, foreign intelligence, national security

Abstract:
This article is derived from a panel presentation on interpretive rules at the Midyear Meeting of the Administrative Law and Regulatory Practice Section of the American Bar Association in February 2001. The article provides a description and analysis of the existing "law" regarding nonlegislative rules adopted by federal administrative agencies, that is, intepretative rules and statements of policy as used in the federal administrative procedure act. This description and analysis includes discussion of how courts determine when a rule is legislative or nonlegislative, what deference courts give to nonlegislative rules, and when preenforcement challenges are ripe for judicial review. The article then addresses the presentations of Professors Peter Strauss and Robert Anthony and Mr. Randy May, in which among other things the article suggests certain problems with Professor Strauss's use of the term "publication rules" in place of nonlegislative rules.

interpretative rules, nonlegislative rules, administrative law

Abstract:
This article is derived from a panel presentation on interpretive rules at the Midyear Meeting of the Administrative Law and Regulatory Practice Section of the American Bar Association in February 2001. The article provides a description and analysis of the existing "law" regarding nonlegislative rules adopted by federal administrative agencies, that is, intepretative rules and statements of policy as used in the federal administrative procedure act. This description and analysis includes discussion of how courts determine when a rule is legislative or nonlegislative, what deference courts give to nonlegislative rules, and when preenforcement challenges are ripe for judicial review. The article then addresses the presentations of Professors Peter Strauss and Robert Anthony and Mr. Randy May, in which among other things the article suggests certain problems with Professor Strauss's use of the term "publication rules" in place of nonlegislative rules.

interpretative rules, nonlegislative rules, administrative law

Abstract:
In 2002, in the case of Planned Parenthood of the Columbia/Willamette, Inc. v. American Coalition of Life Activists, the Ninth Circuit Court of Appeals, sitting en banc, upheld the district court's decision that the American Coalition of Life Activists, and several individuals associated with it, had violated the Freedom of Access to Clinics Entrances Act (FACE) by maintaining a website entitled the Nuremberg Files. The Nuremberg Files was a website that contained a list of names including those of doctors who performed abortions. Some names on these lists were crossed out, while others were in light grey rather than black. A legend on the website explained that the persons whose names were listed in black were working, while those listed in grey were wounded, and those whose names were struck out were fatalities. A major issue in the case was whether it was a violation of the First Amendment to restrain the defendants from maintaining this website. Of the eleven judges on the panel, six found that the website was not protected speech under the First Amendment, while five found that it was. Commentary on the decision in both the press and the academy was generally negative, viewing the decision as a setback for First Amendment values.

This article argues that while the Nuremberg Files site was not protected by the First Amendment, the reasons given by the judges in the majority on the Ninth Circuit were not the correct reasons for that conclusion. Rather, this article suggests that current First Amendment doctrine does not directly address the problem raised by the Nuremberg Files site: speech that is neither a direct threat nor an incitement, but nevertheless — because of its particular character, including its publication on the Internet — is intended to and does have the immediate effect of intimidating persons from engaging in lawful, even constitutionally protected, behavior.

In reaching this conclusion, this article will try to make three points. First, fear is a social evil that the state may protect against, an evil distinct from the actual danger of an event occurring. Second, the Internet is special; it is not like any other traditional media. Third, First Amendment analysis should not be limited to categorizing particular activities in certain predetermined boxes, such as true threats, incitement, defamation, fighting words, etc.; rather, it should be governed more by principles that take account of the balancing implicit in current First Amendment doctrine and categories.

intimidation, internet, First Amendment, Free Speech, True threats, World Wide Web

Abstract:
The Supreme Court's decision in Wong Yang Sung v. McGrath was a decision of some significance in its moment, the central holding of which seemed to establish an important principle in the interpretation of the Administrative Procedure Act (APA). Nevertheless, while the case has never been overruled, it has been relegated to history. After an initial flurry of interest, the case was merely overlooked and then seemingly overtaken by other principles. Today, the case has become little more than a footnote in administrative law. This is unfortunate because Wong took a step that had the promise of establishing uniformity and predictability in the procedure through which adjudication would take place under the APA. The alternate path taken instead has rendered the nature of much federal adjudication either indeterminate or subject to the whim of the agency providing the adjudication.

This Article describes Wong and its central holding interpreting the APA provision with respect to when adjudication is required to follow the procedures contained in the APA. The Article then describes both Wong's immediate history and the subsequent Supreme Court decisions that have left Wong in the dust. Finally, this Article attempts to show that none of these Supreme Court decisions in fact replaces or undercuts the central holding of Wong, and that it is only a misreading of the later cases that has resulted in an abandonment of Wong. Indeed, this Article argues that the original concerns and values the Court recognized in Wong are equally applicable today and that Wong should be rediscovered and given new life.

Administrative Procedure, APA, Adjudication, Formal Adjudication, Chevron, Matthews v. Eldridge

Abstract:
This article assesses the constitutionality of the northeastern Regional Greenhouse Gas Initiative (RGGI), a multi-state CO2 cap-and-trade program on electricity generators, that went into effect in 2009. The article considers possible federal preemption, dormant commerce clause, and compact clause arguments, but concludes that as presently constructed the RGGI passes constitutional hurdles. The article notes that how to deal with “leakage,” the possibility that electricity generation from other states not subject to any cap-and-trade restrictions will enter the RGGI market, negating CO2 reductions from within-RGGI generators, poses the greatest problem.

Constitutional Law, Environmental Law, Climate Change, Dormant Commerce Clause, Compact Clause, Preemption, Federalism

Abstract:
This Article, written for a forum on comparative administrative law, reviews the development of public participation and transparency in American administrative law in general and then examines three specific laws that attempted to increase transparency and public participation - the Federal Advisory Committee Act (FACA), the Government in the Sunshine Act (Sunshine Act), and the Negotiated Rulemaking Act (NRA). These laws, however, are largely viewed as failures, or at least deeply ineffective, in achieving their goals. In examining these laws, this Article attempts to discern why they failed and suggests that the reasons for their failure are not of a nature that can be easily cured by amendment, but rather reflect significant structural impediments to increasing transparency and public participation through such mechanisms. In this way, this Article may provide guidance to EU lawmakers in attempting to craft mechanisms that can effectively facilitate public participation and transparency in EU agency decisionmaking.

Administrative law, Advisory Committees, faca, Government in the Sunshine, Negotiated Rulemaking, Regulartory negotiation, Public participation, Transparency

Abstract:
For many years, the courts have done a poor job in dealing with nonlegislative rules, B interpretive rules, and statements of policy - in a variety of contexts: determining when a rule is an interpretive rule or statement of policy as opposed to a legislative rule, assessing when nonlegislative rules are judicially reviewable, and assigning the appropriate level of deference to agency interpretations contained in nonlegislative rules. While one might well address these issues in a traditional law review article, to treat them together in the holistic fashion that they deserve in such an article would exceed the space limitations imposed by the Forum to which this article was submitted. As a result, I chose a different and perhaps more direct path: Drafting a proposed bill and its associated committee report explaining why the proposed bill is necessary and precisely how it works. In short, the proposed bill would require nonlegislative rules to contain a contemporaneous statement by the agency that the rule does not have binding legal effect. Such a statement would be conclusive proof that the rule was nonlegislative. Absent such a statement, it could not be a nonlegislative rule. This amendment builds on the success of requiring such a statement for emergency rules. Nonlegislative rules would be final agency action and therefore reviewable if they had a practical adverse impact on the person seeking review. This would codify the rule established in National Automatic Laundry and Cleaning Council v. Shultz and create uniformity where there now exists disarray. Finally, such rules would be entitled to Skidmore respect but not Chevron deference, whether they interpreted statutes or an agency's own regulations. This would be consistent with the Supreme Court's decision in United States v. Mead, but it would effectively overrule the Seminole Rock line of cases.

Abstract:
In this short article, Professor Funk first summarizes the law of exhaustion of administrative remedies prior to the Supreme Court's groundbreaking decision in Darby v. Cisneros and then describes that decision and the Court's rationale for it. He notes that both litigants and agencies have been slow to recognize the effect of Darby, so that some agency regulations may still suffer the same flaws as those of the agency in Darby. Professor Funk next addresses the questions that Darby did not answer or which it raised and the responses of lower courts. Some of these questions have been resolved and some not, leaving the lower courts split or confused, but for the most part courts have not been applying the rationale of Darby beyond its particular holding.