Curing the Blind Spot in Administrative Law: A Federal Common Law Framework for State Agencies Implementing Cooperative Federalism Statutes

48 Pages Posted: 26 Jul 2012 Last revised: 29 Apr 2013

Date Written: March 1, 2013

Abstract

This Note examines whether state or federal principles of administrative law should govern suits challenging state agency action pursuant to cooperative federalism statutes. Despite the prevalence of cooperative federalism statutes, courts and scholars alike have given scant attention to this question. That neglect has translated into poorly reasoned and inconsistent judicial decisions. We show that this question is one of federal common law that is properly governed by the framework of Kimbell Foods, which holds that federal common law should take state law as its substantive source unless doing so would create a significant conflict with federal policy.

Keywords: administrative law, cooperative federalism, federal common law

JEL Classification: K23

Suggested Citation

Bendor, Josh and Farmer, Miles, Curing the Blind Spot in Administrative Law: A Federal Common Law Framework for State Agencies Implementing Cooperative Federalism Statutes (March 1, 2013). 122 Yale Law Journal 1280 (2013). Available at SSRN: https://ssrn.com/abstract=2115665 or http://dx.doi.org/10.2139/ssrn.2115665

Josh Bendor (Contact Author)

Yale University ( email )

New Haven, CT 06520
United States

Miles Farmer

Yale University ( email )

New Haven, CT 06520
United States

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