Delegation to Nonexperts

18 Pages Posted: 4 Jun 2019 Last revised: 21 Oct 2020

See all articles by Evan C. Zoldan

Evan C. Zoldan

University of Toledo College of Law

Date Written: October 20, 2020

Abstract

When a legislature delegates authority to an agency or a private party, the
delegate typically has expertise in the subject matter of the delegation. But, while
delegation to experts is the rule, a legislature can also delegate authority to an
institution without expertise in the areas it regulates. This Essay evaluates the
phenomenon of delegation to nonexperts. It concludes that the accountability concerns
that infect delegation generally are more acute in the context of nonexperts.
Conversely, the self-dealing concerns associated with private delegates are minimal
for nonexpert delegates. Finally, the risk is considerable that nonexpert delegation will
lead to arbitrary regulation. These conclusions should inform how our legislatures
delegate authority and how courts review actions taken by nonexpert delegates.

Keywords: delegation, separation of powers, administrative law, administrative agencies

Suggested Citation

Zoldan, Evan Craig, Delegation to Nonexperts (October 20, 2020). 169 U. Pa. L. Rev. Online 100 (2020), University of Pennsylvania Law Review, Vol. 169, p 100 (2020), Available at SSRN: https://ssrn.com/abstract=3387618 or http://dx.doi.org/10.2139/ssrn.3387618

Evan Craig Zoldan (Contact Author)

University of Toledo College of Law ( email )

2801 W. Bancroft Street
Toledo, OH 43606
United States

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