The Administrative Law Review and Yale Journal on Regulation publish terrific administrative law scholarship throughout the year. But I look forward to two special annual administrative law symposia: the George Washington Law Review‘s Annual Review of Administrative Law and the Duke Law Journal’s Annual Administrative Law Symposium. I blogged about DLJ’s symposium, entitled “Taking Administrative Law to Tax,” over at Jotwell earlier this year (here).
GWLR’s annual review went live earlier this month with a terrific foreword and three articles, including one of my own. You can access the full symposium issue online here.
Here’s a brief overview:
In the foreword entitled “Administrative War,” now-California Supreme Court Justice Tino Cuellar continues to build on his terrific book Governing Security to explore what happened to the administrative state during and right after World War II. Professor Cuellar explains:
Americans had witnessed an evolutionary transformation of their administrative state—involving greater exposure among the public to powerful, adaptive federal agencies of nationwide scope; newly permissive legal doctrines legitimizing the delegation of legislative authority and routine compliance investigations; new arrangements for mass taxation; White House supervision of agency action; and further entrenchment of procedural constraints meant to shape agencies’ weighing of the consequences of official decisions. The resulting framework was defined by high-capacity regulatory agencies and contractual arrangements, but it was also subject to political, ideological, and legal constraints. It reflected an avoidance of radical changes in the American political economy in favor of a circumscribed vision of administrative action relative to private markets. With these features in place, the federal administrative state became a fixture of American life.
In “Why Who Does What Matters: Governmental Design and Agency Performance,” David Hymanand William Kovacic apply the framework they have developed in a series of articles for understanding how regulatory duties are assigned to an agency (and change over time and in turn affect agency decisionmaking) to the development of the Consumer Financial Protection Bureau. They also apply their framework to the implementation of the Patient Protection and Affordable Care Act.
In “Chevron and Legislative History,” John Manning argues that legislative history should play no role when Chevron deference applies to judicial review of an agency statutory interpretation. Professor Manning argues:
the Court’s new approach to legislative history precludes the Court’s use of that tool of construction to resolve indeterminacy under the Chevron doctrine. If, as Chevron suggests, an administrative statute’s indeterminacy presumptively reflects a legislative intention to delegate broad policymaking discretion to the responsible agency, then the reviewing court’s use of legislative history to narrow that discretion contradicts the implemental design of the statute by narrowing the delegation effectuated by the text.
Last and probably least, in “The Ordinary Remand Rule and the Judicial Toolbox for Agency Dialogue,” I investigate the circuit courts’ use of administrative law’s ordinary remand rule over a ten-year period and uncover a number of novel tools that courts have developed to enhance their dialogue with federal agencies on remand. Emily Hammond has a terrific response to the piece in GWLR’s online companion, and I plan to blog more about the article and Professor Hammond’s response in the new year.
Also, there are five student notes included in this issue that look interesting but which I haven’t had the chance to read yet. Again you can check out the full issue online here.