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Abstract: Constitutional takings protections, such as those in the Fifth Amendment of the United States Constitution, create a potential for state liability for changes in regulatory policy by governments. This Article critiques takings jurisprudence in the context of two infrastructure investment issues: the stranded cost problem facing United States utility industries, which has given rise to claims of compensation for deregulatory takings; and the development of standards to protect direct foreign investment in developing countries. In both contexts, traditional legal doctrines do not adequately provide for the type of remedy sought so courts are in need of standards to assist them in determining when a change in government regulation warrants recovery for investors. After addressing the current state of United States takings jurisprudence, this Article outlines a constitutional takings doctrine that can be applied to these infrastructure investment issues both within and outside of the American context. Under the doctrine advanced in this Article, the government would be required to pay compensation whenever it takes resources as part of the process of producing public goods and services. This Article's analysis, however, supports a rebuttable presumption against compensation for losses connected with the overall implementation of a public policy. Property rights protection will not aid growth - nor will it sustain historical investment levels - if it encourages inefficient levels and types of investment. In the American context, federal court review of public utility deregulatory takings claims should not entertain the strong property rights notions that some advance for purposes of encouraging infrastructure investment. Instead, this Article concludes that there is no reason for courts to depart from the distinct line of cases addressing public utility price regulation, in which courts routinely defer to regulators' decisions regarding compensation. The courts should treat the deregulation of public utilities as an exercise of government policymaking authority that generally does not require compensation of stranded costs under the United States Constitution. In a similar manner, officials in developing countries who are eager for foreign investment need to look far enough ahead to ask if the generous terms they are offering to investors will backfire in the future when citizens perceive the costs they must bear. Developing countries should be wary of incorporating too sweeping a set of property rights protections into constitutions, individual contracts, or investment treaties, especially if they are still in the process of developing effective state institutions.
Abstract: During the twentieth century, the privately-owned electric utility was regulated as a natural monopoly. Under the natural monopoly paradigm, a vertically-integrated electric utility provides generation, transmission, and distribution services under the rubric of a single firm serving a geographic service territory. While it is allowed to operate as a monopolist, this firm also has certain responsibilities: it submits to price regulation and assumes obligations to extend service to all customers within its geographic service territory and to continue providing service, once service has commenced. With the advent of deregulation, it is assumed that markets will largely displace price regulation, but little discussion focuses on the implications of deregulation for utility service obligations in the electricity industry. Today, electric utilities' extraordinary service obligations - often collectively referred to as the duty to serve - face their largest challenge ever. Can vigorous retail competition of the type public utility deregulation envisions coexist with extraordinary obligations to serve customers? If so, at what costs? Who will bear these costs? These questions are central to an emerging law and economic analysis known as the jurisprudence of networks, of paramount importance as regulators and courts implement competition in traditional public utility industries, including electricity, where the natural monopoly model is being abandoned or reformed. After summarizing how the duty to serve was implemented in the electricity industry under natural monopoly regulation, this article addresses whether traditional service obligations can coexist with retail competition. A rationale often given for universal service obligations in the telecommunications industry is that universal service, by promoting interconnectivity, enhances network system benefits for all customers. While the network economies argument may have worked to sustain universal service in the face of telecommunications deregulation, it is tenuous when applied to the natural gas and electricity industries. Many reformers look askance at the duty to serve in competitive retail utility service markets, often pointing to conflict between retail competition in electricity and the duty to serve. This article argues, however, that application of extraordinary service obligations to distribution companies in a competitive retail framework can coexist with improved efficiency in retail power markets, although the abandonment of the natural monopoly framework challenges regulators to articulate new rationale for service obligations and to devise new ways of paying for them.
Abstract: Nation states can reduce the risks faced by infrastructure investors by establishing a background norm that limits the state's ability to undermine the profitability of infrastructure projects. This background norm would be an implicit term in every contract and would provide a kind of guarantee against certain types of state actions. A background norm in the constitutions of some developed states is a "takings clause" that requires the state to pay compensation when it "takes" property for public use. The application of takings jurisprudence to the field of infrastructure investment is the subject of this paper. The paper shows how infrastructure investors in developing countries face risks related to public sector activities. It then summarizes United States takings law, emphasizing its application to infrastructure industries. Next, it provides a principled way to think about government compensation and applies the framework to infrastructure industries and to developing countries trying to establish a credible legal framework for capital investment. The central policy analytic issues are the efficiency consequences of takings doctrine and the fairness of alternative rules.
Abstract: This Article applies comparative institutional analysis to separation of powers under state constitutions, with a particular focus on the nondelegation doctrine and states' acceptance of Chadha-like restrictions on legislative oversight. The Article begins by contrasting state and federal doctrine and enforcement levels in each of these separation of powers contexts. Most state courts, unlike their federal counterparts, adhere to a strong nondelegation doctrine. In addition, many states accept (de facto if not de jure) even more explicit and sweeping legislative vetoes than the federal system. The Article highlights the contrast of federal and state approaches by identifying their similarity with Federalist and Antifederalist separation of powers principles, respectively. Once the contrast is drawn, the Article develops a descriptive explanation for this divergence in jurisprudential approach. After discussing the pitfalls of common American heritage, textualism, and culture-based approaches to interpreting separation of powers in state constitutionalism, the Article presents institutional analysis as a better explanation for divergences in interpretive approach. Specifically, the Article discusses institutional design in the legislative and executive branches of states, and its interrelationship with faction and capture of the agency decisionmaking process. Attention to institutional design can explain adherence to the nondelegation doctrine in many states, and can also explain the explicit and sweeping presence of legislative vetoes in some states. In addition, attention to institutional design features and their interrelationship with faction in the decisionmaking process can help to shed light on doctrinal nuances of state court approaches to upholding and striking certain delegations, such as delegations to private boards and to federal agencies. Thus, an appreciation of the role of institutional design is a necessary predicate to the development of an independent state theory of separation of powers.
Constitutional law, federalism, separation of powers, administrative law, state governments
Abstract: The filed tariff doctrine, fashioned by courts to protect consumers from rate discrimination, has strayed from its origins. Instead of protecting consumers, the doctrine has evolved into a shield for regulated firms against common law and antitrust claims that reinforce market norms. In the ideal world, Congress would expand the jurisdiction of regulatory agencies to allow them to penalize private misconduct. However, since that has not always happened, the filed tariff doctrine has encouraged private firms to expend resources in using the regulator as a strategy to immunize conduct from antitrust and common law antitrust claims. This Article assesses how the filed tariff doctrine creates an opportunity for strategic manipulation of the tariffing process, encouraging firms to rent seek by over-divulging information to regulators. Neither regulators nor courts are equipped or inclined to police such manipulation, resulting in an expansion of the application of the filed tariff shield. Under natural monopoly regulation, the filed tariff doctrine may have enhanced social welfare, to the extent it encourage private firms to focus their resources on the agency regulatory process. However, as regulation has moved away from the natural monopoly model, the filed tariff doctrine has contributed to a jurisdictional gap in the enforcement of market norms. As a result, federal regulators are unable to effectively deter private misconduct but common law and antitrust claims that also hold promise of deterrence are frequently barred from litigation in federal courts. With deregulation and the broadening of market norms, the jurisdictional gap has widened, threatening harm to consumers and competition. The Article concludes by proposing a way for courts to narrow the gap in enforcement of market norms - by lowering the filed tariff shield and looking to federal preemption law and antitrust defenses and immunities. These alternative doctrines provide courts the flexibility necessary to ensure effective deterrence in a dual enforcement regime. Although they may enhance uncertainty for private firms, the also hold promise to encourage private actors to focus their lobbying efforts on Congress, rather than on agencies that can give them the benefits of the filed tariff shield but lack the authority and resources to directly regulate them. Keywords: Regulated industries, administrative law, antitrust, natural monopoly, deregulation, federal courts, law and economics
Judicial review; antitrust; regulated industries; federal preemption; administrative law
Abstract: This article addresses the implications of retail competition in public utility industries, particularly electricity, for utility service obligations. After tracing the history of the common law duty to serve applicable to public utilities, the efficiency of utility service obligations in the context of rate regulation is explored. Retail competition, many suggest, poses a threat to utility service obligations. However, regulators can minimize the inefficiency of traditional utility service obligations without sacrificing the benefits of retail competition if they pay attention to the structural efficiency of competitive retail markets. The article advocates imposition of basic service obligations on the DisCo and voluntary procurement of power supply financed through a systems benefits charge in the context of PoolCo retail competition model. In addition, the implications of competition in distribution markets on service obligation financing are explored.
Utility regulation, physical access, economic regulation, telecommunications, energy
Abstract: Frequently, state-wide executive agencies and localities attempt to implement federally-inspired programs. Two predominant examples are cooperative federalism programs and incorporation of federal standards in state-specific law. Federally-inspired programs can bump into state constitutional restrictions on the allocation of powers, especially in states whose constitutional systems embrace stronger prohibitions on legislative delegation than the weak restrictions at the federal level, where national goals and standards are made. This Article addresses this tension between dual federal/state normative accounts of the constitutional allocation of powers in state implementation of federally-inspired programs. To the extent the predominant ways of resolving the tension come from federal courts, state constitutionalism is challenged to produce its own account of its relevance in an era of federal programs. After surveying and critiquing the interpretative practices of state courts in dealing with these conflicting constitutional norms, the Article presents an institutional design account of state allocation of powers which might better explain why states routinely suspend constitutional restrictions on delegation in the context of state implementation of federally-inspired programs. The Article questions whether constitutional restrictions on legislative delegation have any normative basis in the context of state implementation of federally-inspired programs, but argues that it is important for state courts to answer this question as a matter of state constitutional interpretation - not by ceding turf to federal courts under the Supremacy Clause or other federally-imposed judicial interpretations.
Administrative law, federalism, separation of powers, state constitutions
Abstract: Inspired by the burgeoning empirical literature on the judiciary, the editors of the Florida State University Law Review have solicited some papers from leading scholars and federal courts of appeals judges, asking them to address the topic of empirical measures of judicial performance. The papers in this "Symposium on Empirical Measures of Judicial Performance" address empirical measures of judicial performance from a variety of methodological perspectives, but as this Foreword suggests, they can roughly be organized around three basic themes. First, many of the papers critique the empirical enterprise itself and especially the tournament strategy for evaluating judges, although these papers also raise important issues for future empirical study of judges. Second, many of the papers in the Symposium propose new ways of operationalizing the empirical study of judicial performance or present fresh new empirical evidence about judges and courts. Third, some of the papers focus on the behavioral and institutional implications or empirical studies of judges and courts. As the papers in the Symposium would indicate, the empirical tournament has inspired some important advances in the discourse about measurement of performance in the context of the judiciary and its relevance to the selection of judges and the judicial process. While efforts to measure judicial performance empirically simultaneously revive many old controversies and presents new issues, its debates will be certain to continue as long as we have data, judges, and courts.
Abstract: Federal judicial deference to state and local regulation is at the center of contentious debates regarding the implementation of competition policy. This Article invokes a political process bargaining framework to develop a principled approach for addressing the appropriate level of judicial intervention under the dormant commerce clause and state action immunity from antitrust enforcement. Using illustrations from network industries, it is argued that, at core, these two independent doctrines share a common concern with political (not only market) failure by focusing on the incentives faced by powerful stakeholders in state and local lawmaking. More important, they share the common purpose of deterring the adoption of regulations with adverse spillover effects for those who do not participate in the relevant lawmaking process. The Article illustrates how a political process bargaining approach to these doctrines differs in its recommendations from traditional formulations, with implications for the degree of deference courts afford state and local laws.
Judicial review, federalism, dormant commerce clause, state action immunity, antitrust law, state and local government
Abstract: This essay responds to claims that the "new" nondelegation doctrine, applied by D.C. Circuit Judge Stephen Williams in American Trucking Association, Inc. v. EPA, 175 F.3d 1027 (D.C. Cir. 1999), advances the rule of law. The Supreme Court has generally favored ex post over ex ante mechanisms for control of administrative action. Currently, for instance, courts apply arbitrary and capricious review, as a way to control agency decision making ex post. But the rule of law benefits of the "new" nondelegation doctrine are no greater than those delivered by the current means of ex post controls. The rule of law serves three primary functions: it reduces uncertainty; it minimizes the likelihood of government tyranny; and it helps to assure political accountability. Judicially enforced ex ante constraints, however, are not necessary to perform any of these functions, and may even undermine some of them. In addition, the rule of law is not the be-all and end-all of regulatory systems. There are countervailing benefits to a system that allows for regulatory flexibility. Although there may be some role for ex ante constraints in controlling agency discretion, the factors that determine the means of limiting agency discretion are political rather than legal in nature. Thus, imposition of ex ante limitations is best left to the political process--not to courts.
Abstract: The filed rate doctrine is a venerable doctrine of public utility regulation. When a court applies it - and courts frequently do - the doctrine serves as a litigation shield for regulated utilities. Federal courts invoking this shield refuse to exercise jurisdiction over an alleged violation of antitrust, tort or contract claim whose resolution would require a departure from a utility's filed rate. Like many venerable legal rules, the filed rate doctrine is rarely questioned. For over a century, it has served many important purposes. However, with deregulated wholesale electric power markets at the federal level and various degrees of deregulation across the states, both the doctrine's continued applicability and usefulness are suspect. Moreover, as recent examples in the industry suggest, presumptive application of the filed rate doctrine by both firms and courts can cause affirmative harm for energy market development and policy. For example, a recent U.S. District Court decision in Texas applied the filed rate doctrine in an astonishingly broad manner, precluding antitrust claims against energy suppliers in the deregulated Texas wholesale power market and leaving those harmed by market abuses without any legal or administrative remedy. The Essay draws on examples such as this to illustrate the serious need for reassessment of the doctrine by federal courts in the energy context. It is argued that both courts and litigators have at their disposal ways of lowering the filed tariff shield to allow more efficient energy markets to develop, better furthering the goals of energy policy.
Courts, deregulation, energy policy
Abstract: This Article argues that public law has fallen into what I call a deference trap in addressing conflicts in deregulated industries, such as telecommunications and electric power. The deference trap describes a judicial reluctance to intervene in disputes involving political institutions, such as regulatory agencies and states. By reassessing the deference trap across the legal doctrines that are effecting emerging telecommunications and electric power markets, public law can deliver much more for deregulated markets. The deference trap poses a particular cost as markets are deregulated, one that may not have been present during previous regulatory eras in which public and private interests in regulatory bargaining were more likely to converge. In expanding the range and degree of potential divergence between public and private interests, deregulation challenges policy makers and courts to reevaluate many of the traditional public law doctrines that frame the process for defining and implementing the rules in competitive markets. This Article sets out to advance this project in the context of three vignettes. In doing so, I draw on a bargaining account of regulation, supplemented with a comparative institutional analysis. The approach evaluates the institutional setting for governance of deregulated markets; it does not limit its analysis to the decisions of a single regulator but pays attention to alternative (and often competing) institutions, including courts, Congress and state legislatures, and state versus federal regulation. Part I illustrates that public law has fallen into a deference trap in the context of the filed tariff doctrine and suggests that, by focusing on bargaining conditions in tariffing, courts could minimize strategic forum shopping in regulatory enforcement. Part II warns against public law falling into a deference trap in the context of judicial review of state regulation under the dormant commerce clause and state action immunity to antitrust enforcement, suggesting that courts correct for this by taking into account private firm incentives in the state lawmaking process. Part III suggests that federal preemption, as currently construed, also invites a deference trap which can create regulatory commons problems and recommends that courts reformulate preemption principles to realign incentive to facilitate regulatory coordination between the federal government and states. By isolating ex ante and ex post incentives and stressing the institutional context for institutional bargaining in the regulatory process, together these examples reveal weaknesses in traditional doctrines of regulatory law in deregulated markets and suggest ways courts might correct for them.
Deregulation, judicial review, antitrust law, federalism, dormant commerce clause
Abstract: In the past decade, a new frontier of constitutional discourse has begun to emerge, adding a fresh perspective to state constitutional law. Instead of treating states as jurisdictional islands in a sea under reign of the federal government, this new approach sees states as co-equals among themselves and between them and the federal government in a collective enterprise of democratic self-governance. This Symposium, organized around the theme of Dual Enforcement of Constitutional Norms, provides the occasion for leading scholars on state constitutional law to take a fresh look at their subject by adopting a vantage point outside of the individualized jurisdictional context. Instead, the Symposium invited participants to consider directly whether state and federal constitutional law are separate and distinct systems of law, each with its own doctrines, traditions, and dominant norms, or whether state and federal constitutional law may profitably be understood as complementary features of a shared project of elaborating and enforcing shared constitutional norms. The Articles in this issue lie along what we hope will prove to be a new frontier that moves courts and scholars closer to a sustainable interpretive theory of state constitutions, shedding important light on the role of state courts, while also addressing the federal judicial role in a system of dual enforcement.
Abstract: In his new book, Interpreting State Constitutions: A Jurisprudence of Function in a Federal System (University of Chicago Press, 2005), James Gardner positions state constitutions and their interpretation within federalism, in contrast to others who see state constitutions as largely independent of the federal constitution or as meriting primacy as their own interpretive texts. As Gardner suggests, understanding state constitutions within the larger national system challenges theorists to focus on the function that state constitutions, and sub-national constitutions more generally, perform within a national system. Gardner argues that a functional approach licenses courts to interpret state constitutions instrumentally to facilitate state resistance to national power. He endorses a rebuttable presumption that construes state judicial power to resist federal authority broadly, envisioning a bolder role than alternative theories for state courts in promoting federalism. After summarizing Gardner's approach, I will discuss two possible objections to it. First, his account is based on the primary goal of federalism as protecting liberty (broadly defined) against intrusion by national authorities. This liberty-based understanding of federalism, however, ignores or downplays that federalism may be understood in ways that are agnostic towards national authority. A broader understanding of federalism would give state courts clearer direction in implementing the goals of federalism and also would allow Gardner to extend his interpretive theory to subnational constitutional interpretation contexts outside of the U.S., where the protection of liberty may not have claim to being a primary historical rational for the recognition of state power. Second, even if we accept Gardner's account of federalism, his approach sees the core interpretive problem of state constitutionalism as centered around judicial power to resist the reach of national power. This court-centered approach downplays other important features of state constitutionalism. For example, as the recent disputes over same-sex marriage in California and Oregon remind us, other branches of government, such as the legislature or executive, could have a superior claim to interpreting a state constitution. Further, in some contexts there are strong reasons for understanding state constitutions as being focused on facilitating, not resisting, federal power. To the extent Gardner's approach views courts as resistors rather than facilitators of national authority, his interpretive tools may be limited in their ability to serve the goals of state constitutions - as where a state branch other than a court resists federal power and courts support it. Gardner's interpretive account does little to help courts solve such conflicts, thus inviting courts and scholars to do further interpretational groundwork. Notwithstanding these concerns, the broader framework Gardner lays out is the strongest starting place for a theory of state constitutional interpretation. His innovations for state constitutionalism allows scholars and courts to conceptualize a state constitution as something more than a positivist text in a jurisdictional vacuum, without rendering state constitutions irrelevant given the existence of national power in a federalist system. Gardner's functionalist approach and presumptions should be taken as a challenge for state courts, even though I believe that a mature enterprise of state constitutional interpretation must do more than adhere to a liberty-based notion of federalism or focus exclusively (or necessarily even primarily) on judicial interpretation.
State constitutions, federalism, judicial review, constitutional interpretation
Abstract: In REGULATORY BARGAINING AND PUBLIC LAW (Cambridge University Press 2005; 274 pp.; ISBN 0521838924), Professor Rossi explores the implications of a bargaining perspective for institutional governance and public law in deregulated industries, such as electric power and telecommunications. Leading media accounts blame deregulated markets for failures in competitive restructuring policies, as with the California electricity deregulation fiasco. However, Professor Rossi argues that governmental institutions, often influenced by private stakeholders, share blame for the defects in deregulated markets. Among the issues address in this book are consumer service obligations, constitutional takings jurisprudence, the filed rate doctrine, the dormant commerce clause, state action immunity from antitrust enforcement, and federalism disputes. Professor Rossi's book warns against a 'deference trap' leading courts to passive roles in conflicts involving political institutions, such as regulatory agencies and states. To address such concerns, Professor Rossi's book suggests a unified set of default rules to guide courts in the United States and elsewhere as they address the complex issues that will come before them in a deregulatory environment. The first part of the book explores the minimal role that judicial intervention played for much of the twentieth century in public utility industries and how deregulation presents new opportunities and challenges for public law. The second part of the book explores the role of public law in a deregulatory environment, focusing on the positive and negative influences it creates for the behavior of private stakeholders and public institutions in a bargaining-focused political process.
Deregulation, courts, public law, administrative law, antitrust
Abstract: This article addresses problems associated with settlement of appeals of legislative rules adopted by administrative agencies. Settlement is a common and important tool for avoiding litigation, but it also raises potential problems for administrative law. In particular, to the extent that an appellate litigation posture poses a principal/agent gap, an agency's incentives to settle may lead it to abandon its public interest goals, otherwise protected by statutory mandates as well as administrative procedures. The problem is most salient when an agency agrees to a substantive policy position in a settlement, committing the agency to later implement a policy course. To the extent an agency uses the same administrative procedure to implement a settlement that was used in adopting the regulation that is the subject of an appeal, the public interest may be preserved, but agencies have many ways of avoiding administrative procedure, or affording less procedure than was afforded in the initial adoption of a rule, in implementing settlement concessions. This article discusses these issues in three parts. In part I, settlement is contrasted to negotiated regulation. Settlement, it is argued, raises a more significant principal/agent gap than other consensus approach to regulation, such as negotiated regulation. Part II addresses settlement against the backdrop of presidential transitions, during in which policy shifts are common. In the context of presidential transitions, settlement can be used by an old administration to commit a new President to a policy course, or can be used by a new administration to undo the policy decisions of an old President. While policy shifts are expected during presidential transitions, such shifts have serious consequences for administrative procedure if the new policy is implemented with less procedure than the old, abandoned policy. Part III recommends some ways of narrowing the principal/agent gap in rulemaking settlement. In particular, broad participation in settlement negotiations, as well in judicial proceedings approving settlements, is endorsed. In addition, hard look review of the merits of a settlement ex ante - at the time of the settlement's initial approval - is advocated as a way of promoting accountability.
Settlements; administrative law; executive branch; judicial review
Abstract: This Article addresses critically the implications of the U.S. Supreme Court's recent decision in Christensen v. Harris County, 120 S.Ct. 1655 (2000), for standards of judicial review of agency interpretations of law. Christensen is a notable case in the administrative law area because it purports to clarify application of the deference doctrine first articulated in Skidmore v. Swift & Co., 323 U.S. 134 (1944). By reviving this doctrine, the case narrows application of the predominant approach to deference articulated in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), thus reducing the level of deference in many appeals involving administrative agency interpretations of law. This Article addresses the deference debate in this context, criticizing Christensen, especially Justice Thomas' majority opinion. The Article argues that the majority did not properly apply Skidmore, and that the Court's decision invites ad hocery by lower courts in their review of agency legal interpretations. It concludes that conceptualizing Skidmore within the architecture of Chevron's step two ? not as an alternative to the application of Chevron ? will best promote goals of accountability, uniformity, and flexibility.
Judicial review, administrative law, deference, statutory interpretation
Abstract: During most of the twentieth century, state and local regulatory bodies coordinated the siting or power plants and transmission lines. These bodies focused on two important issues: 1) the determination of need, so as to avoid unnecessary economic duplication of costly infrastructure; and 2) environmental protection, so as to provide local land use and other environmental concerns input on the placement of necessary generation and transmission facilities. With the rise of a deregulated wholesale power market, the issue of need is increasingly determined by the market, not regulators. Environmental concerns with siting, however, frequently remain contested - especially locally - but the regulatory apparatus for processing these concerns faces new challenges in deregulated markets. As this Essay suggests, environmental concerns in transmission line siting will increasingly be addressed at the federal level, with federal concerns predominating consideration of the issues. The dormant commerce clause does much of the work towards making this a predominantly federal concern, but eventually FERC's jurisdiction over such matters will need to be expanded by statute. Even if Congress does not expand FERC's jurisdiction, this Essay argues that courts can play a positive role to facilitate the resolution of state-federal siting conflicts. A recent siting dispute involving a power line in the Long Island Sound illustrates this fundamental shift in the environmental discourse of siting proceedings, as a well as a need for modifications to federal law regarding transmission siting. Ultimately, FERC may need authority to preempt state siting laws, but absent congressional action courts could enhance competition in electric power markers by empowering state and local siting boards to take into account federal goals in competitive markets in making siting decisions.
Electric power, deregulation, federalism.
Abstract: This is a critical review essay, exploring the thesis advanced by Gregory Sidak and Daniel Spulber in their book Deregulatory Takings and the Regulatory Contract (Cambridge University Press 1997). Sidak and Spulber argue that deregulation of the electric utility and local telephony industries can constitute an unconstitutional taking to the extent the state does not provide compensation for the investment-backed expectations of firms in the industry. In addition, they argue that economic efficiency requires this result. This review takes Sidak and Spulber to task for their reading of the case law. In addition, the review criticizes their argument for giving short shrift to the lessons of public choice theory and the law and economics of risk. In many instances, it is argued, private industry is in a better position than ratepayers or government to bear the risk of regulatory change in the utility industry. Thus shared responsibility for change to the industry is appropriate.
Constitutional takings, Networks, Deregulation, Energy, Telecommunications
Abstract: The Essay uses three recent books - two by a historians and one by an economist - to address the electric power deregulation fiasco in the U.S. It argues that public law has an important role to play in deregulated markets. At least in part, the essay argues, public law is to blame for the failure of deregulation in California. At the same time, the Essay suggests, without clarification of jurisdictional responsibility and incentives in public law, adoption of effective competitive market reforms to the electric power industries will not succeed in the future.
Deregulation, public utilities, federalism, antitrust, constitutional law
Abstract: Courts struggle with the tension between national competition laws, on the one hand, and state and local regulation, on the other - especially as traditional governmental functions are privatized and as economic regulation advances beyond its traditional role to address market monitoring. This Article defends a process-based account of the state action antitrust exception against alternative interpretations, such as the substantive efficiency preemption approach recently advanced by Richard Squire, and elaborates on what such a process-based account would entail for courts addressing the role of state economic regulation as a defense in antitrust cases. It recasts the debate as focused around delegation issues and judicial deference to regulation - traditionally issues of administrative law. State action antitrust exception issues frequently are invoked where state officials fail to act or only act partially to regulate, as is increasingly common where states privatize governmental functions or attempt to deregulate, or implement competition policies of their own. As I shall argue, in such contexts a delegation model, which focuses on the conditions under which state legislative bodies have made delegations, whether agency regulators have standards, and the reasons provided by state and local officials for regulatory inaction, provides a more powerful and principled approach for evaluating the interaction between regulation and antitrust litigation than alternative approaches. A process-based account of the state action exception recognizes federalism and efficiency as important values, but changes the primary emphasis of the judicial inquiry. Federalism values and economic efficiency may well be advanced by applications of the state action exception, but that does not require courts to ground their decisions in individual cases entirely on federal preemption legal analysis or on an assessment of the substantive efficiency of state or local regulation. On a process-based account, federalism goals could be advanced by state and local political processes as much as by federal courts attempting to identify and apply the substantive values in broad federal statutes such as the Sherman Act. Moreover, a process-based account of antitrust defenses, such as the state action exception, recognizes the possibility that economic efficiency can inform the application of the substantive standards of antitrust law without requiring economic efficiency to be the primary focus in evaluating every governmental program, particularly at the state and local level. By discouraging courts from directly addressing economic efficiency concerns before addressing the merits of an antitrust violation, such an approach promotes judicial economy and, if properly cabined, can also have a positive effect on the behavior of private groups in the lawmaking process. Even within alternative accounts that give priority to federalism or economic efficiency, the delegation approach should be used to inform the evidentiary assessment of procedure, serving as predicate any judicial decision to extend a state action antitrust exception. The Article proceeds in four parts. Part I discusses the problems with current formulations and applications of the antitrust state action exception, which no one finds satisfactory. As I argue, traditional approaches, such as a federal preemption-oriented understanding of state action doctrine, have serious limitations given a state and local regulatory environment that is increasingly characterized by regulatory transition and inaction. Part II introduces Chevron, the predominant paradigm for judicial review of regulation in administrative law, highlighting its delegation structure and aspects of it that are useful to understanding the problems state regulation present for antitrust law. Part III explains limits to the analogy between Chevron step one and the clear articulation requirement for antitrust state action. Part IV draws an analogy to step two of Chevron and analyzes the implications of recasting the state action antitrust exception to focus on agency reasons, not power or history. The Article concludes by addressing the kinds of reasons that should suffice for purposes of addressing active regulatory supervision at the state and local level as a predicate to extending an antitrust state action exception.
Antitrust, Regulated Industries, Deregulation, Judicial Review, Federalism
Abstract: This chapter outlines a regulatory bargaining account of regulated industries. The account analyzes the relationship between private stakeholders and governmental institutions in regulated industries through a bargaining lens. The account is introduced and contrasted to other approaches to regulation as contract. The chapter, which is the introduction to a book length treatment of the issue, REGULATORY BARGAINING AND PUBLIC LAW (Cambridge University Press 2005; 274 pp; ISBN 0521838924) surveys application of regulatory bargaining to a variety of issues facing electric utility and telecommunications firms, including consumer service obligations, consumer service obligations, constitutional takings jurisprudence, the filed rate doctrine, the dormant commerce clause, state action immunity from antitrust enforcement, and federalism disputes. The approach leads the author to advance suggestions to guide courts in the United States and elsewhere as they address the complex issues that will come before them in a deregulatory environment.
Deregulation, courts, constitutional law, antitrust, administrative law
Abstract: This encyclopedia entry discusses the history and current relevance of the U.S. Supreme Court's nondelegation doctrine.
Nondelegation, Supreme Court, Separation of Powers
Abstract: Regulatory agencies are increasingly adopting ex ante rules to set market access terms and conditions for network industries. At the same time, in industries such as telecommunications and electric power transmission and distribution, antitrust laws play an important role in defining the terms and conditions of market access. Courts may have an important ex post enforcement role to play in the enforcement of the antitrust laws. In this Essay, I address the filed rate doctrine - a legal principle that determines when courts, rather than regulatory agencies, may serve as a standard-setter for or arbiter of market terms, independent of their widely-accepted role as the reviewer of decisions by an agency, such as the Federal Communications Commission (FCC). I begin by discussing the issue in the context of electric power deregulation. Then, I turn to the telecommunications context, in which the points of departure for this issue after the Telecommunications Act of 1996 are the Seventh Circuit's Goldwasser decision and the Second Circuit's Curtis Trinko case, which is currently pending before the U.S. Supreme Court. It is argued that Goldwasser should be read narrowly, to preclude judicial consideration of only to poorly-pled antitrust claims.
Abstract: This article identifies several variations in state executive, legislative, and judicial design in comparison to the U.S. federal constitutional structure. The possible impact on state administrative procedure of these variations in institutional design are then explored. For example, the author argues that institutional design provides a novel explanation for the growth of the central panel of administrative law judges in states. At the general level, it is argued that institutional design is relevant to the path of state administrative procedure. Moreover, it is argued that institutional design makes state administrative procedure relevant by allowing scholars and law reformers to overcome the parochialism that often dominates discussion of state law issues. Rather than discussing state administrative law doctrine in the isolation, the author argues that framing the discussion in the context of institutional design can enrich debate and scholarship about state administrative procedure.
Abstract: Statutory nondelegation is an administrative procedure reform mechanism that constrains agency authority to promulgate regulations, with the intention of enhancing the legislative accountability of agency rulemaking. For example, the Bumpers Amendment to the federal APA, proposed more than two decades ago, would have relied on courts to aggressively review the statutory authority for agency regulatory action. This article uses a 1996 Florida administrative procedure reform that revives the failed Bumpers Amendment to discuss some of the problems with statutory nondelegation as an administrative procedure reform. It argues that statutory nondelegation makes agency rulemaking less--not more--accountable. In addition, it discusses how Florida's statutory nondelegation reform has led to many radical administrative procedure reforms during the 1999 legislative session. The article uses Florida's misguided reforms, largely the product of a state law reform process dominated by special interest politics, to suggest a more tempered approach to administrative procedure reform for Pennsylvania and other states.
Abstract: This essay addresses how ALJ final order authority in many state systems of administrative governance (among them Florida, Louisiana, Missouri, and South Carolina) poses a tension between independence and accountability. It is argued that political accountability is sacrificed where reviewing courts defer to ALJ final orders on issues of law and policy. Standards of review provide state courts with a way of restoring the balance between independence and accountability, but reviewing courts should heighten the deference they give to the agency's legal and policy positions -- giving little or no deference to the ALJ on these issues -- even where the ALJ's decision had final status.
Abstract: Courts and scholars have largely overlooked the constitutional source and scope of state executive agency power to avert and respond to crisis. This Article addresses how perceived legal barriers to executive authority under state constitutions can and do have major consequences beyond a state's borders during times of crisis. It proposes to empower state executives to address federal and regional goals without any previous authorization from the state legislature - a presumption of state executive lawmaking, subject to state legislative override, which would give a state or local executive expansive lawmaking authority within its system of government to address national and regional goals during times of crisis. Part I examines the structure of decision making by state executives during times of interstate crisis, with a particular emphasis on the constitutional structure under which state executives manage crises and the tensions presented in sharing crisis authority with federal regulators. Successful interstate crisis management under the current system requires a Governor to declare an emergency under state law and, in the course of doing so, to assert more constitutional authority than a state otherwise affords. State executive decisions during times of emergency are not always on solid constitutional ground, however, as it may be perceived that a state legislature retains the ability to constrain the executive or that federal law preempts state action. Part II argues that the constitutional basis for a strong state executive during times of crisis is stronger than the case for a strong national executive during emergencies. I argue that state executives possess inherent authority to address crisis, including lawmaking and budgetary authority, notwithstanding potential separation of powers or implied preemption limits on the state executive. Regardless of constitutional text, broad executive powers must extend to proactive acts of crisis aversion as well as to responses to events. Taking away judicial review at the state level during such times comes at a very small cost so state courts should have little or no role in managing such emergency powers, which can be self-policed by the state legislature. While the approach of this Article is to suggest a solution based on state constitutional interpretation, which ideally would be endorsed by state courts, its analysis also recommends an approach for state legislatures as they consider state emergency management statutes as well as for Congress as it considers national emergency management legislation statutes.
Constitutional law, administrative law, executive power, emergency planning
Abstract: This Article addresses the implications of broad-based participatory reforms for administrative process, with a particular focus on how participation reveals itself in different political-theoretic models of agency governance. The first section of the Article explores participation's value to agency governance. The second section of the Article presents three models of agency governance - expertocratic, pluralist, and civic republican - and discusses participation's importance to each model. The Article then posits a distinction between ordinary and constitutive agency decisionmaking, and explores how participation affects each for the three distinct models of agency governance. The implications of mass participation are explored in the context of citizen suit provisions to enforce environmental laws, the Environmental Impact Statement process under the National Environmental Policy Act, and sunshine laws which require meetings of multi-member agencies to be open to the public. The Article concludes by suggesting that mass participatory reforms to administrative law have adverse implications for the models of agency governance in various contexts, but are particularly deleterious for civic republican theories of administrative law. Thus, the Article suggests, de-emphasizing participation in administrative law theory and reforms may work to make agency governance more democratic.
Administrative procedure, participation, intervention, deliberative democracy
Abstract: Empirical research to date on state-level administrative procedure acts (SLAPAs) is inconclusive regarding when states will adopt and amend SLAPAs. However, there is reason for optimism that more comprehensive empirical study could shed light on the McNollgast hypothesis and its variations - allowing researchers to better understand the relationship between commitments, politics, and administrative procedure. This will require the assembly of much more exhaustive and comprehensive data than has previously been collected. Once data is assembled, empirical study could shed light on: a) the extent to which administrative procedures are neutral or whether they are likely to have a partisan bias; b) the effects of divided government on the adoption of administrative procedures; c) the influences of the length (or durability) of procedural commitments in SLAPAs; and d) the extent to which model statutes are effective in minimizing partisan influence in the adoption and amendment of SLAPAs. This Essay addresses how the collection and analysis of such data might proceed, and how such analysis could open up possibilities for important future research, including research on the effects of administrative procedure reforms in states. The Essay also argues that there are benefits to having administrative lawyers participate with social scientists in the empirical enterprise of examining SLAPAs.
Administrative Procedure, States, Legislation. Political Control, Empirical Study
Abstract: In the recent book, Greed, Chaos and Governance: Using Public Choice to Improve Public Law (Yale U. Press 1997), Jerry Mashaw addresses the convergence between public choice and administrative law. This review essay summarizes Mashaw's arguments and explores his use of public choice tools. The review suggests that, absent some unifying theoretical perspective for understanding administrative governance outside of public choice method, little more than rampant pessimism or fragmented lessons about the administrative state can be taken.
Abstract: Florida's Administrative Procedure Act was revised in 1996 and 1999 to impose stringent restrictions on agency authority to promulgate regulations. This Article analyzes the amendments and concludes that their ramifications are far reaching and adverse. In addition to hindering the ability of agencies to promulgate regulations, the Florida APA amendments will make environmental regulation less flexible. They also risk damaging the already fagile relationship between the federal Environmental Protection Agency and state regulators. It is concluded that reformers' claim to improving the accountability of agency regulations by the means of hamstringing agency authority to promulgate rules is highly questionable.
Abstract: In this Essay, I address the question of which branch of state government ought to have the authority to negotiate interstate compacts - a question of state separation of powers. Recent case law interpreting state constitutions in the context of Indian gambling compacts provides a particularly fertile ground for exploring this question, as it illustrates how courts are struggling to find a way to allow state executive officials greater autonomy to negotiate interstate compacts. Part I illustrates how traditional notions of separation of powers under state constitutions can be understood to pose a barrier to executive branch negotiation of interstate compacts. Part II illustrates how state courts have found this approach unsatisfactory, and discusses how cases have looked to Contract Clause principles to override traditional state separation of powers concerns. I argue that Contract Clause principles are an unsatisfactory way of resolving concerns with the state allocation of powers to negotiate compacts, for both legal and policy reasons. The Essay concludes in Part III by arguing that to date state courts have used an isolationist interpretive method to address the problem. As an alternative I propose that courts interpret the separation of powers provisions of state constitutions in the context of the federal programs states may be furthering when they enter into interstate compacts. Specifically, by drawing on implied preemption principles under the Supremacy Clause of the U.S. Constitution, courts could heed state separation of powers principles in this area without turning separation of powers into a barrier to compacts. Where Congress has indicated some preference for compacts and has authorized states to enter into compacts, I propose a presumption of state executive authority to negotiate compacts on behalf of the state. Where a state legislature has not specifically prohibited the executive from negotiating a compact in a regulatory area, this presumption would authorize the executive to act on behalf of the state subject to disapproval by the state legislature.
State constitutions, separation of powers, federalism, preemption, Indian gaming
Abstract: Recent policy-effect studies denounce judicial review for its adverse effects on agency decisionmaking. In its strong version, the policy-effect thesis suggests that judicial review has paralized innovative agency decisionmaking. Professor Rossi reacts to policy-effect studies, particularly as they have been used to attack the hard look doctrine in administrative law. He revisits Professor Richard Pierce's policy-effect description of the effects of judicial review of the Federal Energy Regulatory Commission (FERC). Professor Rossi's survey of recent FERC decisionmaking provides some support for an attenuated version of the policy-effect thesis, but leads him to reject the strong version of the thesis. Much of the policy-effect literature hastily condemns judicial review because it is costly, unpredictable, and counter-majoritarian. However, Professor Rossi defends judicial review against the policy-effect attack as a protector of deliberative democratic values. He suggests that reforms to agency adjudicative mechanisms could alleviate the problems identified by policy-effect critics, while also allowing judicial review an opportunity to acheive its benefits.
Administrative law, judicial review, ossification, energy policy, FERC
Abstract: This Article addresses how the legally final (i.e., immediately appealable) status of Administrative Law Judge decisions in many state systems of administrative governance with central panels (among them Florida, Louisiana, Missouri, and South Carolina) presents accountability problems. Especially given these problems, where reviewing courts defer to ALJ final orders on issues of law and policy, fundamental administrative law goals and values are undermined. Standards of review provide state courts with a way of restoring accountability. Specifically, when reviewing legally final ALJ orders, reviewing courts could restore accountability by heightening the deference they give to the agency's legal and policy positions - placing special weight on agency appellate briefs and giving little or no deference to the ALJ on these issues.
Judicial Review, administrative law, central panels, state administrative procedure
Abstract: This textbook for law and business school courses is organized roughly chronologically, according to the periods in history within which energy-related issues arose. Economic and environmental issues are integrated with energy resource issues: energy policy, energy in nature, the concept of a public utility, water power, coal, oil, natural gas regulation before 1985, rate regulation, competitive markets in natural gas, introduction to electricity, wholesale electric power competition, stranded costs, retail competition in electric power, nuclear energy, energy in transportation, international petroleum, the climate change issue, and continuing issues in economic regulation. Chapter 1 is made available for download by the publisher.
Energy Law, Environmental Law, Regulated Industries
Abstract: This chapter addresses the interaction between public choice and legal issues in the energy industry. The extent to which the interaction between private stake holders and governmental actors in the energy industry reflects self-interest rather than sound economic policy was studied by public choice scholars as early as the 1960s and continues to hold the attention of economists and political scientists today. Certain economic features and legal doctrines that are commonplace under traditional public utility regulation - the predominant approach by which many energy resources were price regulated throughout the twentieth century - may reflect rent seeking on the part of private stakeholders as much as enlightened public interest by lawmakers. For example, the preferences of various interest groups have bolstered the stability of public utility legal doctrines, such as consumer protection requirements and the judicial reluctance to extend strong constitutional protections to energy firms.
Public choice approaches also can illuminate the regulatory and institutional arrangements that have evolved in national energy regulation. Many energy resources are geographically-based in source and extraction, yet nationwide in consumption. An interest group approach to legislation sheds light on why Congress has selected to address some energy issues at the national level, while ignoring others altogether or leaving them to subnational governments. In addition, logrolling, which has characterized most recent congressional energy legislation, helps to illustrate how seemingly disparate energy issues have become connected in national energy policy and how national energy policy has been largely unsatisfactory and unstable across time. It also advises caution in reading specific purposes into general energy legislation.
Recent efforts to privatize and deregulate energy resources have been celebrated by many as a triumph of competitive markets over regulation. However, the interest group story surrounding the movement towards energy markets is also heavily dependent on governmental processes and merits the same type of public choice critique that has been applied to traditional energy regulation. Competitive restructuring of energy markets has been motivated by private self-interest in the political process as much as enlightened free-market policy, giving public choice insights relevance in addressing matters such as the filed rate doctrine and state regulation.
Public Choice, Energy Regulation, Deregulation, Judicial Review, Capture Theory, Federalism, Legislation, Antitrust
Abstract: The filed rate doctrine is a venerable doctrine of public utility regulation. Federal courts applying the doctrine frequently defer to the regulatory agency and refuse to consider the merits of alleged violations of antitrust, tort or contract claims where resolution would require a departure from a filed rate. For over a century, the filed rate doctrine has served many important purposes. However, with increased attention to market-based approaches to electric power, natural gas and telecommunications regulation, there is reason to question both the doctrine's continued applicability and usefulness. This short essay argues that, as regulators implement competitive markets in utility industries, at a minimum the traditional principles of deference which courts applied in this context need to be reassessed.
Judicial Review, Antitrust, Regulated Industries
Abstract: This is a review of The Limits of Competition Law: Markets and Public Services (Oxford 2005), by Tony Prosser, a Professor of Public Law at the University of Bristol, England. When competition laws and other public service principles are in tension, can courts avoid a collision or will it be necessary to pick a winner? Prosser's analysis pays particular attention to public service obligations and their implications for the regulation of state monopoly in the European Union, drawing interesting and important connections between antitrust principles in the UK and elsewhere in Europe, specifically France and Italy. Although the notions of sovereignty that predominate in the EU differ fundamentally from those of federalism in the United States, Prosser's discussion parallels familiar American debates about the scope of defenses for regulated industries under antitrust laws. State-sponsored public service laws can serve important goals, as Prosser recognizes, but this review argues that an extension of his frame can also give courts grounds to recognize when state or industry claims of public service goals values are unjustified.
Antitrust, Trade Regulation, Consumer Protection, Federalism, Public Utilities, Monopoly, Administrative Law, State and Local Regulation
Abstract: This Article discusses how state public utility law presents a barrier to the siting of new high voltage transmission lines to serve renewable resources, and how states could approach its evolution in order to preserve a role for state regulators in a new energy economy in which renewable energy will play a significant role. The traditional approach to determining the "public interest" in siting transmission lines is well on its way to obsolescence. Two developments over the past fifteen years have begun to challenge this paradigm. First, policies at the federal level and in many states have encouraged increased competition in generation, contributing to de-monopolization of the bulk power side of the industry. Second, the increased emphasis on environmental, energy independence, and other public policy objectives, has resulted in a dramatically increased demand for renewable energy, particularly given heightened attention to climate change. Given that wind power -- the most economically viable renewable resource on a bulk power basis -- is feasible predominantly in locations far removed from, load centers, the demand for new multistate transmission facilities has been brought clearly into focus.
After an introduction in Part I, Part II describes the existing arrangements in several resource rich Western states for siting new transmission lines, and the coexistence of those arrangements with a conventional understanding of the public interest in determining need and addressing environmental concerns under traditional state transmission siting laws. Part III discusses transmission issues related to the competitive wholesale market and increased attention to climate change and highlights how federal law has expanded to accommodate some of these concerns. Part IV emphasizes the need for a new definition of the public interest which might better reflect these new market circumstances and opportunities, and highlights the two main barriers to this: 1) legislative and/or regulatory inertia and 2) an outdated cost-allocation model. The public interest under most state siting statutes is sufficiently capacious to give regulators some flexibility to evolve, but in other instances legislative action may be needed. In addition, the state cost-of-service ratemaking model must evolve to a more regional approach to allocating the costs of new transmission.
Abstract: Not so very long ago, the story of American constitutional law was easy to understand and even easier to relate. Constitutional law was a story written by two actors: the framers of the U.S. Constitution and the U.S. Supreme Court. The U.S. Constitution provided the content of constitutional law and a Supreme Court told us what it meant. Today, this master narrative has begun to unravel in favor of new one that treats constitutional law as both the object and the venue of a plural and often remarkably inclusive ongoing conversation about the norms by which we live and govern ourselves. The U.S. Supreme Court remains, to be sure, an important and in many ways preeminent voice in the formal pronunciation of American constitutional law. But increasingly the Court is understood to share the stage with a plurality of other voices that speak together - sometimes cooperatively, sometimes competitively - in a collective enterprise of generating, elaborating, and ultimately applying and enforcing constitutional norms.
This paper, which comprises the introductory chapter of Dual Enforcement of Constitutional Norms: New Frontiers of State Constitutional Law (James A. Gardner and Jim Rossi, eds., Oxford University Press, forthcoming 2010), lays out the book’s principal thesis. Rejecting both the old dual federalism and the newer judicial federalism models, the contributors to this volume understand the generation, development, interpretation, and enforcement of constitutional norms at the national and state levels to be best conceived as constituent activities of a single, collective enterprise conducted by many actors located in many sites scattered throughout the system. The chapters of Dual Enforcement thus present a conception of national and subnational constitutional law as complementary partners in a complex, collective enterprise of constitutional self-governance, and our aim for the book is to advance an understanding of state constitutions in the broader inter-institutional process of constitutional dialogue.
federalism, state constitutions, state constitutional law, state courts, dialogic
Abstract: Reform proposals pending in the U.S. Congress would increase federal and regional power to preempt states in siting transmission lines on order to allow the development of a high-votage transmission grid for renewable resources. This Article recognizes the inadequacy of existing state siting authority over transmission, but takes a skeptical approach to expanding federal siting jurisdiction as a solution to the problem and argues that the over-attention to transmission line siting authority is a bit of a Trojan horse in the climate change debate. Specifically, because it ignores the more difficult issues of how the costs and benefits of transmission are balanced, and how it will be paid for, siting jurisdiction alone will not remove barriers to transmission infrastructure and may present some hidden problems of its own. Legislative focus on enhancing federal authority over transmission lines has confused responsibility for this issue, further delaying federal administrators and regional bodies from taking proactive approaches that they currently possess authority to implement. Further, transmission siting authority reforms can actually undermine climate change goals if it does not consider the full costs and benefits associated with a project. It must also assess how transmission will be priced. Failure to do these things can make transmission siting authority a Trojan horse in the climate change debate - masking fundamental issues that could harm the climate and keeping reformers from focusing on the more serious barriers faced by the large-scale development of renewable resources.
Climate change, renewable energy, land use, transmission, siting, federalism
Abstract: Linda Cohen and Matthew Spitzer's study, "The Government Litigant Advantage," sheds important light on how the Solicitor General's litigation behavior may impact the Supreme Court's decision making agenda and outcomes for regulatory and administrative law cases. By emphasizing how the Solicitor General affects cases that the Supreme Court decides, Cohen and Spitzer's findings confirm that administrative law's emphasis on lower appellate court decisions is not misplaced. Some say that D.C. Circuit cases carry equal-if not more-precedential weight than Supreme Court decisions in resolving administrative law issues. Cohen and Spitzer use positive political theory to provide a novel explanation for some of this bias towards circuit court decisions in defining the rule of law in administrative law practice and scholarship. However, this Comment argues that what Cohen and Spitzer's empirical finding of "government litigant advantage" means more generally for the rule of law in the regulatory context requires further elaboration.
Supreme Court, Judicial Review, Administrative Law, Constitutional Law
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