Double Deference in Administrative Law

68 Pages Posted: 11 Sep 2016 Last revised: 18 Oct 2016

Emily Hammond

George Washington University - Law School

Date Written: September 9, 2016

Abstract

Administrative law presumes a neat system of agency rulemaking and adjudication followed by judicial review. But the reality of the administrative state departs starkly from this model. One such departure is the use of audited self-regulatory organizations (SROs) -- private organizations comprised of specific industries that formulate binding law to regulate themselves. Although SROs operate subject to the oversight of federal agencies, their power is vast, reaching significant swaths of the national and international economies. There is little to constitutionally constrain such arrangements, and whereas the administrative law model values the norms of participation, deliberation, and transparency, the procedures used by SROs depart from these norms in important ways. Moreover, oversight agencies are deferential to SROs, and courts in turn are deferential to the oversight agencies. This doubling of deference both undermines accountability and fails to adequately guard against arbitrariness. This Article brings a much-needed administrative law lens to SROs, providing both a positive and theoretical account of SROs and exposing flaws in the model. To better ameliorate these concerns, this Article illustrates how existing administrative law can more comprehensively account for SROs and offers a series of institutional design considerations for furthering administrative law norms in the future.

Keywords: administrative law, self regulation, self-regulatory organization, privatization, deference, judicial review

Suggested Citation

Hammond, Emily, Double Deference in Administrative Law (September 9, 2016). Columbia Law Review, November 2016, Forthcoming; GWU Law School Public Law Research Paper No. 2016-46; GWU Legal Studies Research Paper No. 2016-46. Available at SSRN: https://ssrn.com/abstract=2837077

Emily Hammond (Contact Author)

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States

Paper statistics

Downloads
98
Rank
225,945
Abstract Views
313