Universal vacatur is a legitimate part of administrative law’s remedial scheme, not a judicial invention. This Feature traces universal vacatur from the pre-APA period through Abbott Labs . It also juxtaposes the case against universal vacatur with the new major questions doctrine, showing that both …
Drawing on interviews and historical accounts, this Article explains how federal agencies help states write legislation. Even as the Supreme Court has curtailed administrative power in the name of federalism, this Article shows how agency collaborations with statehouses may further values associated…
The APA’s conventional rules stem from traditional rules of relevancy for discovery, rather than a statutory mandate. The scope of evidentiary review for constitutional claims against agencies should be determined by decision rules for a particular claim, consonant with the underlying principles of …
An elected leader’s control may seem essential to bureaucratic accountability. But the administrative state itself better secures accountability’s core values. As this empirical study shows, complementarity between civil servants and political appointees; officials’ scrutiny of each other’s work; an…
This Feature identifies a foundational problem in modern administrative law. It argues that the Supreme Court’s dual commitments to unitary executive theory and separation-of-powers literalism are in deep conflict when it comes to agency courts. Recognizing this conflict advances debates about how t…
Distilling patterns across cooperative federalism programs, this Article uncovers the distinctive cross-governmental administrative law—and the unusual rulemaking it facilitates—in our most consequential federal-state collaborations.
A court reviewing unlawful agency action, in deciding whether to “remand without vacatur,” considers the two factors of legal deficiency and undue disruption. Surveying diverging approaches to balancing these factors in environmental cases, this Essay proposes a reframing of the test that draws on p…
The Supreme Court is inventing a new brand of administrative law, in which the President holds all executive power, but the Court restricts and countermands agencies’ policymaking discretion. The Court thus takes a share of the executive power it assigns exclusively to the President. The result is c…
Justice Stephen Breyer’s context-specific approach to judicial deference has prevailed in Supreme Court’s decisions to an underappreciated extent. Now the conservative majority is moving toward a no-deference rule. But they are unlikely to ultimately succeed because institutional pressure that then-…
This Essay examines the major questions doctrine’s relationship to the administrative-law jurisprudence of a man who helped develop it: Justice Breyer. Born of Breyer’s proposal to bring nuance into judicial review of agency action, the doctrine has taken on a life of its own much different than wha…
Many recent Supreme Court attacks on the administrative state have been rooted in an asserted effort to increase democratic accountability, or accountability to elected officials, whether the President or Congress. This approach neglects how the Constitution makes available a broader account of demo…
Scholars have long debated whether the administrative state is a democratic institution. This Article offers a new framework for analyzing this question—one drawn from agonistic democratic theory. It argues that agonism provides new grounding for the legitimacy of administrative agencies while also …
Modern applications of the binding-norm test suggest that agencies cannot bind even low-level officials to internal guidance. This Note, however, finds that internal binding norms are common tools of bureaucratic supervision. In response, it proposes a new approach to judicial review of guidance tha…
Does administrative law have a racial blind spot? Ceballos, Engstrom, and Ho examine “disparate limbo”: how claims that agencies caused racial disparities have come to evade review under both antidiscrimination and administrative law, and how ignoring race may have helped build modern administrative…
Judicial review of the Federal Reserve is uncommon. But this may soon change: a Court skeptical of administrative governance is poised to collide with an increasingly interventionist Fed. This Note argues that any path forward must take seriously the Fed’s role in our economic system while acknowled…
The Supreme Court invalidated two major executive-branch initiatives in the past two years, pointing in each case to concerns about an evasion of political accountability. This Feature surfaces the “accountability-forcing” brand of arbitrariness review at work in these cases, unpacks its significanc…
The Supreme Court is poised to consider whether the Constitution’s original meaning is compatible with numerous and longstanding congressional laws delegating power to the bureaucracy to enact regulations affecting private rights within the United States. New evidence presented in this Article indic…
Several current Supreme Court Justices have signaled a renewed interest in resurrecting the nondelegation doctrine, but numerous scholars have portrayed the doctrine as ahistorical and unoriginalist. This Feature systematically reviews the evidence and concludes there is much more historical support…
This Note seeks to identify the causes of “public charge” confusion. Mapping the exclusion’s history reveals how Congress and the courts have left the administrative state a near-impossible task: reconciling public charge with evolving commitments to public welfare. Drawing on archived Clinton-era n…
Can federal administrative agencies defy the courts? As this Feature demonstrates, executive defiance of judicial authority is already afoot in the immigration system, and in ways that implicate multiple dimensions of the deportation state as well as the evolving relationship between the executive a…
Congress has given the Federal Reserve broad statutory mandates over the U.S. economy. This Feature articulates a framework, “technocratic pragmatism,” to evaluate how the Fed should structure experiments at the boundaries of its authority to combat complex problems (e.g., global climate change) con…
Pound and Schmitt both assumed that the administrative state would increasingly abandon general rules in favor of ad hoc administrative commands. Dworkin, however, predicted that the increasing complexity of the administrative state would induce reliance on general legal principles to maintain legal…
The complexity of the regulatory state undermines public goals, and leads to broad citizen alienation. The root cause is the progressive aspiration to organize government as a kind of machine producing uniform public choices. A functioning democracy requires a simpler framework allowing officials to…
Can the federal government make policy when it settles litigation? Surprisingly, yes. This Note offers a comprehensive account of the Department of Justice’s authority to enter into policymaking settlements, and a new separation-of-powers defense of that authority. Ultimately, policymaking settlemen…
This Essay analyzes New York City data on the collection of fines and concludes that slightly more than half of fines imposed are collected in full. The Essay explores barriers to collection and recommends reforms that attempt to directly target underlying harms, rather than increase resources for f…
Recently, the FDA asserted authority to regulate a type of COVID-19 diagnostics known as laboratory-developed tests, which long have been a front line of response to emerging disease. FDA did not, and should not, have authority to regulate these tests. Its intervention added minimal value while cont…
This Note chronicles the Patent Office’s use of guidance to reduce the judicially created uncertainty that surrounds patentable subject matter. It argues that these guidance documents closely resemble legislative rulemaking and thus push the boundaries of the Office’s current authority.
Federal officials enforced a “separate but equal” framework for public housing long after Brown invalidated that principle. This administrative regime wrote segregation into U.S. cities, operating as the effective Constitution for decades. This Article asks why a liberal, reformist agency chose that…
For over three decades, immigration judges used administrative closure as a case-management tool to encourage efficiency and fairness. After then-Attorney General Sessions ended this practice, the U.S. immigration-court system has faced severe and unjustifiable consequences. This Essay argues for a …
Separation of powers operates as an underappreciated structural principle in subconstitutional domains. Using the relationship between federal energy agencies as its primary case study, this Article argues that Congress creates statutory schemes of separation, checks, and balances in its delegations…
Skepticism of the federal bureaucracy has inspired growing calls to cabin the independence of certain agency actors, including administrative law judges ( ALJs ). Through a holistic assessment of NLRB case law, including a novel empirical study, this Note argues that eliminating ALJ independence would…
Under the Trump Administration, the legal validity of Obama-era administrative guidance on social inclusion has been the subject of ongoing contest. This Article draws on the philosophy of law to argue that these policies were issued in a procedurally lawful manner and that they have induced legally…
Approximately forty million Americans live in poverty. Yet we know little about how they encounter the federal civil justice system. This Article provides the first survey of the in forma pauperis pleading standards of all ninety-four federal district courts. It reveals an inefficient and arbitrary …
This Essay examines the FDA’s implementation of new statutory patient-involvement requirements in light of past problems with simlar initiatives atthe FDA. Despite the risks of repeating these mistakes, the Essay concludes that the Agency’s early implementation efforts are encouraging.
Administrative agencies can aggregate or disaggregate provisions during a single legislative rulemaking. Such regulatory bundling has been especially prevalent over the last two decades, with agencies including increasingly more subjects in their final rules. This Article explores this phenomenon, t…
This Article recovers an institutional experiment in the early history of the Fair Labor Standards Act as an example of democratic and egalitarian administrative law. The Act’s wage boards, the Article suggests, offer an alternative, participatory vision of governance in today’s age of growing polit…
This Note argues that the Constitution gives Congress exclusive authority over office creation. This exclusive power has important and surprising implications for a series of live constitutional questions, such as the constitutionality of qualifications clauses, for-cause removal provisions, and tem…
From the early twentieth century to the present, the concept of transparency in American law has drifted across the political spectrum. Originally linked with progressive causes, it is now associated primarily with libertarian or neoliberal aims. This Article traces this multigenerational transforma…
This Article reveals that Freedom of Information Act requests at seven federal agencies are dominated by individuals seeking records about themselves, including immigration, investigation, and medical records. Yet FOIA is ill-suited to meet the vital needs of first-person requesters, and these reque…
Administrative finality jurisprudence is mired in a doctrinal morass. Specifically, courts have not converged on a finality doctrine for interpretative rules. This Note integrates an historical analysis of the Administrative Procedure Act with the revolution that Chevron deference fostered to provid…
This Article traces the roots of the modern administrative state to the petition process, drawing on an original database of over 500,000 petitions submitted to Congress from the Founding until 1950. This institutional history provides a deeper functional and textual understanding of the administrat…
Although commentators have criticized Dodd-Frank for not solving the problem of "too big to fail" banks, this Note identifies one promising feature of the law. As a "Pigouvian regulation," Dodd-Frank imposed compliance costs that incentivized banks to divest risky assets while providing regulators t…
Courts and agencies are traditionally understood to interact in two ways: judicial review and agency determinations of which cases reach federal courthouses. This Note identifies and evaluates a third dynamic by which agencies across the federal bureaucracy shape how cases proceed in court using the…
Federal agencies in the United States hear almost twice as many cases each year as all the federal courts. But agencies routinely avoid using tools that courts rely on to efficiently resolve large groups of claims: class actions and other complex litigation procedures. As a re…
Although historical debates about the separation of powers focus on Congress, the President, and the Judiciary, in modern times, the bureaucracy is the elephant in the room. In a world of seemingly inevitable widespread congressional delegation to administrative agencies, as we…
Judicial deference to executive statutory interpretation—a doctrine now commonly associated with the Supreme Court’s decision in Chevron v. Natural Resources Defense Council—is one of the central principles in modern American public law. Despite its significance, however, the doc…
To read the voluminous literature on administrative law is to inhabit a world focused almost exclusively on federal agencies. This myopic view, however, ignores the wide array of administrative bodies that make and implement policy at the local-government level. The administrativ…
Devised in the aftermath of the most severe financial crisis since the Great Depression, the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) was enacted to reduce risk, increase transparency, and promote market integrity. Since Dodd-Frank was sig…
abstract.The Supreme Court’s approach to the Constitution’s separation of powers is a puzzle. Although the Justices appear to agree on the doctrine’s goals, in almost every important line of cases the Court oscillates between hard-edged rules and open-textured standards. The Court’s seem…
Not long after the Freedom of Information Act (“FOIA”) went into effect, consumer advocate Ralph Nader sent one hundred students out to test whether the statute was working. The students made FOIA requests to more than a dozen federal agencies on a range of consumer topics, from highway safety and a…
This much should be uncontroversial: the public should have access to the law and to the government’s interpretations of it. This principle is an imperative not just of due process but also of republican governance. The Freedom of Information Act (FOIA), which the Eighty-ninth Congress enacted half …
This year marks the fiftieth anniversary of the Freedom of Information Act (FOIA). In the words of President Obama, this law, “which encourages accountability through transparency, is the most prominent expression of a profound national commitment to ensuring an open government.” Since its enactment…
The Freedom of Information Act (FOIA) has a lofty goal: to open the doors of government offices and allow the public a front-row seat in watching over government affairs. In turn, this sort of bright transparency should enhance our participatory democracy and the accountability of our elected offici…
For fifty years, the Freedom of Information Act (FOIA) has been the platinum standard for open government in the United States. The statute isconsidered the legal bedrock of the public’s right to know about the workingsof our government. More than one hundred countries and all fifty states haveenact…
The Dodd-Frank Act authorized the Securities and Exchange Commission (“SEC”) to bring almost any enforcement action in an administrative proceeding. Before Dodd-Frank, the SEC could secure civil fines against registered broker-dealers and investment advisers in administrative proceedings, but had to…
A large body of literature in administrative law discusses presidential control of executive agencies through centralized review of regulations in the Office of Information and Regulatory Affairs (OIRA), part of the White House’s Office of Management and Budget (OMB). Largely…
This Article investigates the normative and constitutional case for a particular form of congressional delegation that is of increasing practical importance: delegations that give agencies the power to deprive statutory provisions of legal force and effect, a power this Artic…
When Congress creates a statutory cause of action, some required elements of that cause of action may be considered “jurisdictional,” while others may not. The difference between jurisdictional and nonjurisdictional requirements is subtle but important. A jurisdictional element limit…
Introduction In his recent essay, Bounded Institutions,1 Yair Listokin examines bounded and unbounded structures as two alternative designs for principals to delegate regulatory authority to their agents.2 Bounds refer to numerical or quantifiable limitations that are set by the principa…
Last summer, the D.C. Circuit upheld a statute that gives the President the power to remove judges of the United States Tax Court.1 Kathleen and Peter Kuretski, a taxpayer couple, had challenged the constitutionality of that provision, alleging that it granted an executive official the imper…
In November 2014, President Obama announced his intention to dramatically reshape immigration law through administrative channels. Together with relief policies announced in 2012, his initiatives would shield nearly half the population of unauthorized immigrants from removal and en…
Introduction Until this term, administrative law seemed beyond the reach of originalist scrutiny at the Supreme Court. Then, in a series of six originalist opinions, Justice Thomas called into question agency rulemaking, judicial deference to agencies, and certain agency adjudications…
In Perez v. Mortgage Bankers, the Supreme Court struck down a rule of administrative common law on the grounds that it was inconsistent with the Administrative Procedure Act (APA). But instead of simply respecting Congress’s deliberate choices, the Court continues to weigh policy considera…
Introduction The fate of the Affordable Care Act1 (ACA) may turn on the precise meaning of five words tucked into 26 U.S.C. § 36B(b)(2)(A), a once-obscure provision of the law under which tax subsidies are available for “qualified health plans . . . which were enrolled in through an exc…
Introduction If the Supreme Court rules against the government in King v. Burwell,1 insurance subsidies available under the Affordable Care Act (ACA) will evaporate in the thirty-four states that have refused to establish their own health-care exchanges.2 The pain could be felt within week…
In two recent articles, we urged financial regulators to use cost-benefit analysis (CBA) to evaluate financial regulations.1 John Coates has emerged as a leading critic of this view.2 In this essay, we respond to his objections. We make several points. First, Coates conflates two separate …
I. what government doesn’t know Cost-benefit analysis is best understood as a way for agencies to ensure that their decisions are informed—that they are based on knowledge about likely consequences, rather than on dogmas, intuitions, hunches, or interest-group pressures.1 But when agen…
The SEC’s economic analysis has been under fire in recent years. This essay argues that the agency’s response to successful challenges to its rules has produced real progress in the SEC’s rulemaking process as well. The SEC has refined its internal processes and improved its work produc…
Let me begin by thanking Professors Posner, Weyl, and Sunstein, and Mr. Kraus, for their thoughtful and thought-provoking replies, and the editors of the Yale Law Journal for organizing this exchange. The comments are rich, and a full response would take on the size of another article—but …
Introduction Since the 1980s, the FBI has issued documents referred to as National Security Letters (NSLs), which demand data from companies—including financial institution records and the customer records of telephone companies and communications service providers—for foreign intellig…
Over the last several months, five states have passed “Right to Try” laws,1 which are designed to allow terminally ill patients to obtain experimental drugs.2 Often popularly known as “Dallas Buyers Club” laws,3 Right to Try legislation appears to bypass the FDA’s safety procedures…
In late 2009 and early 2010, the Environmental Protection Agency promulgated a series of final agency actions that operate together to regulate greenhouse gas (GHG) emissions under the Clean Air Act (CAA). Under some CAA programs, sources of pollution are required to obtain permits based on …
122 Yale L.J. 1280 (2013).
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 scan…
**This is the sur-reply to a series of responses to Jonathan Masur's recent article, Patent Inflation, which appeared in the December issue of YLJ. For Professor Arti Rai's response, see here. For Lisa Ouellette's response, see here.**
In Patent Inflation, I argued that the asymmetry in Federal Cir…
**This is the second in a series of responses to Jonathan Masur's recent article, Patent Inflation, which appeared in the December issue of YLJ. For Professor Arti Rai's response, see here. For Professor Masur's sur-reply, see here.**
Professor Jonathan Masur’s recent article, Patent Inflation, argue…
**This is the first in a series of responses to Jonathan Masur's recent article, Patent Inflation, which appeared in the December issue of YLJ. For Lisa Ouellette's response, see here. For Professor Masur's sur-reply, see here.**
Jonathan Masur’s argument regarding “Patent Inflation” rests on the a…
**This is the first in a series of responses to Benjamin Ewing and Douglas A. Kysar's recent article, Prods and Pleas: Limited Government in an Era of Unlimited Harm, which appeared in the November issue of YLJ.**
In Prods and Pleas, Benjamin Ewing and Douglas Kysar claim that the American legal sy…
**In May 2011, The Yale Law Journal Online introduced a new series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases. This Essay is part of the second symposium in that series.**
**In May 2011, The Yale Law Journal Online introduced a new series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases. This Essay is part of the second symposium in that series.**
**In May 2011, The Yale Law Journal Online introduced a new series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases. This Essay is part of the second symposium in that series.**
**In May 2011, The Yale Law Journal Online introduced a new series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases. This Essay is part of the second symposium in that series.**
In July 2004, eight states, the City of New York, and a number of conservation organ…
**In May 2011, The Yale Law Journal Online introduced a new series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases. This Essay is part of the second symposium in that series.**
In American Electric Power Co. v. Connecticut (AEP), the Supreme Court held that “th…
120 Yale L.J. 1032 (2011).
Standard questions in the theory of administrative law involve the allocation of power among legislatures, courts, the President, and various types of agencies. These questions are often heavily informed by normative commitments to particular allocations of governmental …
120 Yale L.J. 276 (2010).
Courts have long struggled to distinguish legislative rules, which are designed to have binding legal effect and must go through the rulemaking procedure known as notice and comment, from nonlegislative rules, which are not meant to have binding legal effect and are exemp…
119 Yale L.J. 2096 (2010).
This Note argues that government agencies should receive substantial deference when they interpret statutes informally under the standard of Skidmore v. Swift & Co. A key reason why courts defer to agencies is that agencies are more politically accountable than courts. C…
Climate change has become the hottest environmental debate in decades. It could also go down as the dirtiest—and not just politically. As legislators, regulators, pundits, and stakeholders debate the question of whether or not to regulate greenhouse gas emissions, the regulatory uncertainty that t…
119 Yale L.J. 1362 (2010).
The dominant story of America’s so-called “Gilded Age” describes an era of private excess and public corruption. In a rapidly industrializing society, private capital, in league with venal politicians, ran roughshod over a national state apparatus incapable of responding…
119 Yale L.J. 782 (2010).
This Note examines whether U.S. regulatory agencies frequently use guidance documents to issue policy decisions, avoiding the notice and comment process and other procedures normally required to issue rules. Legal scholars and recent presidential administrations both have…
119 Yale L.J. 837 (2010).