Feature

The Past and Future of Universal Vacatur

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 …

Article

Ghostwriting Federalism

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…

Note

Rationalizing the Administrative Record for Equitable Constitutional Claims

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 …

Article

The Accountable Bureaucrat

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…

Feature

The Adjudicative State

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…

Article

Coordinated Rulemaking and Cooperative Federalism’s Administrative Law

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.

Forum

Remand Without Vacatur in a Changing Environment

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…

Forum

Deference, Delegation, and Divination: Justice Breyer and the Future of the Major Questions Doctrine

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…

Forum

The Jurisprudence of “Degree and Difference”: Justice Breyer and Judicial Deference

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-…

Forum

The Binary Executive

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…

Forum

The Majoritarian Difficulty

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…

Article

The Administrative Agon: A Democratic Theory for a Conflictual Regulatory State

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 …

Note

Agency Control and Internally Binding Norms

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…

Article

Disparate Limbo: How Administrative Law Erased Antidiscrimination

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…

Note

Judging the Fed

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…

Feature

Reasoned Explanation and Political Accountability in the Roberts Court

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…

Article

A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s

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…

Feature

Nondelegation at the Founding

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…

Feature

Executive Defiance and the Deportation State

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…

Note

The Problem with Public Charge

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…

Feature

Technocratic Pragmatism, Bureaucratic Expertise, and the Federal Reserve

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…

Forum

Rules, Commands, and Principles in the Administrative State

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…

Forum

From Progressivism to Paralysis

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…

Note

The Attorney General’s Settlement Authority and the Separation of Powers

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…

Forum

Who Pays? An Analysis of Fine Collection in New York City

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…

Forum

Deadly Delay: The FDA’s Role in America’s COVID-Testing Debacle

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…

Note

Rulemaking § 101

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.

Article

Plessy Preserved: Agencies and the Effective Constitution

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…

Forum

The Rise and Fall of Administrative Closure in Immigration Courts

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 …

Article

The Statutory Separation of Powers

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…

Note

Constraint Through Independence

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…

Article

The Claims of Official Reason: Administrative Guidance on Social Inclusion

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…

Article

Pleading Poverty in Federal Court

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 …

Forum

Good and Bad Patient Involvement: Implementing the Patient-Involvement Provisions of the 21st Century Cures Act at the FDA

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.

Article

Regulatory Bundling

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…

Article

An American Approach to Social Democracy: The Forgotten Promise of the Fair Labor Standards Act

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…

Article

Transparency’s Ideological Drift

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…

Note

Congressional Power over Office Creation

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…

Article

First-Person FOIA

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…

Note

Timing Judicial Review of Agency Interpretations in Chevron’s Shadow

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…

Article

Petitioning and the Making of the Administrative State

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…

Note

Dodd-Frank Is a Pigouvian Regulation

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…

Note

Litigation Rulemaking

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…

Article

Inside the Agency Class Action

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…

Essay

Agency Design and Political Control

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…

Article

The Origins of Judicial Deference to Executive Interpretation

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…

Article

Localist Administrative Law

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…

Note

Playing Nicely: How Judges Can Improve Dodd-Frank and Foster Interagency Collaboration

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…

Article

The Cycles of Separation-of-Powers Jurisprudence

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…

Forum

The “Freedom From Information” Act: A Look Back at Nader, FOIA, and What Went Wrong

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…

Forum

A Resurgence of Secret Law

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 …

Forum

Memorandums to Messages: The Evolution of FOIA in the Age of the Internet

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…

Forum

Inside FOIA, Inc.

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…

Forum

Is Open Data the Death of FOIA?

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…

Forum

Securities Settlements in the Shadows

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…

Article

The President’s Budget as a Source of Agency Policy Control

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…

Article

Administrative Forbearance

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…

Comment

Jurisdictional Rules and Final Agency Action

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…

Forum

Bounds in Bank Regulation

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…

Article

The President and Immigration Law Redux

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…

Comment

Interbranch Removal and the Court of Federal Claims: “Agencies in Drag”

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…

Forum

Justice Thomas and the Originalist Turn in Administrative Law

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…

Forum

Pixelating Administrative Common Law in Perez v. Mortgage Bankers Association

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…

Forum

Statutory Ambiguity in King v. Burwell: Time for a Categorical Chevron Rule

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…

Forum

No Good Options: Picking Up the Pieces After King v. Burwell

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…

Forum

Cost-Benefit Analysis of Financial Regulations: A Response to Criticisms

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 …

Forum

Financial Regulation and Cost-Benefit Analysis

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…

Forum

Economists in the Room at the SEC

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…

Forum

Cost-Benefit Analysis of Financial Regulation: A Reply

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 …

Forum

Warrant Canaries and Disclosure by Design: The Real Threat to National Security Letter Gag Orders

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…

Forum

Fighting for the "Right To Try" Unapproved Drugs: Law as Persuasion

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…

Forum

Questioning the Use of Structure To Interpret Statutory Intent: A Critique of Utility Air Regulatory Group v. EPA

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 …

Note

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

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…

Forum

Inflation Indicators

**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…

Forum

What Are the Sources of Patent Inflation? An Analysis of Federal Circuit Patentability Rulings

**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…

Forum

Who’s Afraid of the Federal Circuit?

**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…

Forum

Beware of Prods and Pleas: A Defense of the Conventional Views on Tort and Administrative Law in the Context of Global Warming

**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…

Forum

AEP v. Connecticut’s Implications for the Future of Climate Change Litigation

**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…

Forum

A Tale of Two Climate Cases

**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…

Forum

Climate Justice and the Elusive Climate Tort

**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.**

The Supreme Court’s decision in American Electric Power Co. v. Connecticut (AEP) clo…

Forum

Standing on Hot Air: American Electric Power and the Bankruptcy of Standing Doctrine

**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.**

Article III standing has three seemingly simple components: (1) the plaintiffs must …

Forum

What Litigation of a Climate Nuisance Suit Might Look Like

**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 explicitly le…

Article

Allocating Power Within Agencies

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 …

Article

Legislative Rules, Nonlegislative Rules, and the Perils of the Short Cut

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…

Note

Accountability, Deference, and the Skidmore Doctrine

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…

Article

Federal Administration and Administrative Law in the Gilded Age

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…

Forum

The Dirty Climate Debate

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…

Note

Strategic or Sincere? Analyzing Agency Use of Guidance Documents

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…

Comment

Constitutional Avoidance Step Zero

119 Yale L.J. 837 (2010). 

Article

Proposing a Place for Politics in Arbitrary and Capricious Review

119 Yale L.J. 2 (2009). 

Current conceptions of “arbitrary and capricious” review focus on whether agencies have adequately explained their decisions in statutory, factual, scientific, or otherwise technocratic terms. Courts, agencies, and scholars alike, accordingly, generally have accepted the no…

Forum

Regulating Federal Prosecutors: Let There Be Light

The Office of Professional Responsibility (OPR), housed within the U.S. Department of Justice (DOJ), investigates alleged misconduct by federal prosecutors and other DOJ personnel. Under the Bush administration, even when OPR found serious prosecutorial misconduct, DOJ kept the disciplinary investig…

Article

Normative Canons in the Review of Administrative Policymaking

118 Yale L.J. 64 (2008).

Who should ensure that statutes are interpreted to reflect background norms left unaddressed by Congress—norms like respect for the rights of regulated parties, protection of the interests of states and Native American tribes, avoidance of government bias, and the separa…

Article

Administration and "The Democracy": Administrative Law from Jackson to Lincoln, 1829-1861

117 Yale L.J. 1568 (2008).

Jacksonian America was a country in rapid transition. Intensified sectional divisions, exponential increases in urbanization and immigration, the rise of factory production, and repeated cycles of economic boom and bust helped to fuel an anxious desire for political refor…

Forum

Agency Preemption Inputs in Riegel v. Medtronic

Essay

Justifications, Power, and Authority

117 Yale L.J. 1070 (2008).

Criminal law theory made a significant advance roughly thirty years ago when George Fletcher popularized the important conceptual distinction between justifications and excuses. In the intervening years, however, very little progress has been made in exploring the structu…

Comment

Sheltering Deprivations: FEMA, Section 408 Housing, and Procedural Redesign

116 Yale L.J. 1883 (2007).

Article

Reluctant Nationalists: Federal Administration and Administrative Law in the Republican Era, 1801-1829

In 1801 the Jeffersonian Republicans took charge of Congress, the presidency, and the national administration, determined to roll back the state-building excesses of their Federalist predecessors. In this effort they were partially successful. But the tide of history and the demands of a growing nat…

Forum

Understanding the Distinct Function of the Combatant Status Review Tribunals: A Response to Blocher

Article

The Constitutional Foundations of Chenery

116 Yale L.J. 952 (2007)

The Supreme Court regularly upholds federal legislation on grounds other than those stated by Congress. Likewise, an appellate court may affirm a lower court judgment even if the lower court’s opinion expressed the wrong reasons for it. Not so in the case of judicial review…

Forum

Improving Deference: Chevron as a Voting Rule

Of central importance to administrative law and theory is the question whether, and when, courts will defer to agency interpretations of law. In Chevron v. Natural Resources Defense Council, the Supreme Court replaced earlier answers to that question with a new framework: courts should defer to an a…

Forum

Chevron Should Not Be Converted into a Voting Rule: A Response to Gersen and Vermeule's Proposal

Forum

The Costs of Voting Rule Chevron: A Comment on Gersen and Vermeules Proposal

Professors Gersen and Vermeule argue that we should replace “doctrinal Chevron,” which instructs courts to defer to an agency’s reasonable interpretation of a statute the agency administers, with “voting rule Chevron.” Under voting rule Chevron, judges would not defer to agency views. Inst…

Article

Chevron as a Voting Rule

116 Yale L.J. 676 (2007)

In Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., the Supreme Court created a new framework for judicial deference to agency interpretations of law: courts should defer to an agency interpretation unless the relevant statute is clear or the agency interpret…

Forum

Can Interagency Dialogue Serve as the New Separation of Powers?

In Internal Separation of Powers, an essay recently published in this Journal, Neal Katyal adds his own distinctive twist to the debates about the growth of presidential power by suggesting reforms within the executive branch that would cabin executive discretion without violating the Constitution…

Forum

Can Process Cure Substance? A Response to Neal Katyals Internal Separation of Powers

We lawyers are committed to reason. A process founded on the exchange of reasoned argument, we want to believe, will produce the right decisions. Professor Katyal profoundly disagrees with the legal decisions reached by the Bush Administration in the aftermath of September 11. In response, he propos…

Forum

Toward Internal Separation of Powers

The standard American conception of separation of powers presumes three branches of government, each replete with ambition to maximize its power. But due to a complicated interplay of party dynamics and executive branch assertiveness, Congress has often been content to stay at the sidelines of regul…

Forum

Political Checks on a Politicized Presidency: A Response to Neal Katyals Internal Separation of Powers

Frustrated by Congress’s apparently feeble efforts to check presidential war powers and unconvinced that another round with the War Powers Resolution will do much good, Neal Katyal recommends, in an essay recently published in the Journal, the promotion of an “internal separation of powers.” P…

Forum

A Debate Between Peter Strauss and Cass Sunstein

In Beyond Marbury: The Executive’s Power To Say What the Law Is, 115 Yale L.J. 2580 (2006), Professor Cass Sunstein argues that Chevron is the Marbury v. Madison of our age, and that it is now the province of the executive branch to "say what the law is." Professor Peter Strauss responds that Chev…

Essay

Executive Branch Usurpation of Power: Corporations and Capital Markets

115 Yale L.J. 2416 (2006)

Agencies in the executive branch are better situated than other political institutions to take advantage of opportunities to expand their power base by responding quickly and decisively to real or imagined crises. The executive has structural advantages over the other branch…

Feature

Chevron and Agency Norm-Entrepreneurship

115 Yale L.J. 2623 (2006)

Essay

Quasipublic Executives

115 Yale L.J. 2254 (2006)

In this Essay, we first observe the rise of what we call "quasipublic executives": both "nominally private executives," that is, private executives in charge of public functions such as corrections, education, and national defense; and "nominally public executives," that is,…

Article

Good Governance at the Supranational Scale: Globalizing Administrative Law

115 Yale L.J. 1490 (2006)

This Article examines the tension between the demonstrable need for structured international cooperation in a world of interdependence and the political strain that arises whenever policymaking authority is lodged in global institutions. It argues that the tools of administr…

Review

Justice Breyer's Democratic Pragmatism

115 Yale L.J. 1719 (2006)

As a law professor at Harvard Law School, Stephen Breyer specialized in administrative law. His important work in that field was marked above all by its unmistakably pragmatic foundations. In an influential book, Breyer emphasized that regulatory problems were "mismatched" t…

Article

Recovering American Administrative Law: Federalist Foundations, 1787-1801

115 Yale L.J. 1256 (2006)

By scholarly convention, federal administrative law begins in the United States in 1887 with the establishment of the Interstate Commerce Commission. Before that time the national government is perceived as a state of courts and parties in which federal administration was mi…

Article

The Sarbanes-Oxley Act and the Making of Quack Corporate Governance

114 Yale L.J. 1521 (2005)

This Article provides an evaluation of the substantive corporate governance mandates of the Sarbanes-Oxley Act (SOX) of 2002 that is informed by the relevant empirical accounting and finance literature, and of the political dynamics that produced the mandates. The empirical …

Note

Regulation by Software

114 Yale L.J. 1719 (2005)

This Note builds on Larry Lessig's famous formulation that "code is law" to argue that Lessig was wrong to equate computer software with physical architecture. Although software resembles both law and architecture in its power to constrain behavior, it has features that dis…

Review

Property in All the Wrong Places?

114 Yale L.J. 991 (2005)

In Who Owns Native Culture? and Public Lands and Political Meaning, an anthropologist and a historian document an ever-increasing deployment of property categories in two quite different domains: native people's recent cultural claims in the first book and the longer story o…

Comment

Punishing Masculinity in Gay Asylum Claims

114 Yale L.J. 913 (2005)

Does a homosexual asylum seeker need to prove he is "gay enough" to win protection from a U.S. court? Increasingly, and troublingly, the answer is yes. In In re Soto Vega, the Board of Immigration Appeals (BIA) denied a gay man's application for asylum because he appeared to…

Article

The Defined Contribution Paradigm

114 Yale L.J. 451 (2004)

Pension cognoscenti have frequently remarked on the stagnation of defined benefit pensions and the concomitant rise of defined contribution plans. This Article suggests that over the last generation something more fundamental, which can justly be called a paradigm shift, has…

Note

Compatibility and Interconnection Pricing in the Airline Industry: A Proposal for Reform

114 Yale L.J. 405 (2004)

Where rival firms compete in a network industry, compatibility among all firms maximizes the size, density, and total value of the network by combining rivals into a single network. Applying network-compatibility theory to the airline industry suggests that major carriers hav…

Note

An Article I, Section 7 Perspective on Administrative Law Remedies

114 Yale L.J. 359 (2004)

By applying game-theoretic analysis to the bicameralism and presentment requirements of Article I, Section 7, scholars have recommended reforms in constitutional law, statutory interpretation, and the Chevron doctrine. This Note builds on this work and explores whether Articl…

Essay

Sharing Nicely: On Shareable Goods and the Emergence of Sharing as a Modality of Economic Production

114 Yale L.J. 273 (2004)

This Essay offers a framework to explain large-scale effective practices of sharing private, excludable goods. It starts with case studies of carpooling and distributed computing as motivating problems. It then suggests a definition for shareable goods as goods that are "lump…

Comment

Is the Right To Organize Unconstitutional?

113 Yale L.J. 1999 (2004)

Waremart Foods v. NLRB, 354 F.3d 870 (D.C. Cir. 2004).

Do union organizers have the right to organize on private property? As far as federal law is concerned, the answer to that question is clear. Employee organizers have broad rights under the National Labor Relations Act…

Note

Taxing Political Donations: The Case for Corrective Taxes in Campaign Finance

113 Yale L.J. 1283 (2004)

Incentive-based regulations are generally more efficient than command-and-control measures. One of the primary categories of incentive-based regulations--and one that has gained significant support of economics scholars over the past few decades--is corrective taxation. Co…

Article

The Integration of Tax and Spending Programs

113 Yale L.J. 955 (2004)

This Article provides a theory for deciding when a spending program should be implemented through the tax system. The decision is traditionally thought to be based on considerations of tax policy. The most common theories are the comprehensive tax base theory and the tax expe…

Comment

The Sorcerer's Apprentice: Sandoval, Chevron, and Agency Power to Define Private Rights of Action

113 Yale L.J. 939 (2004)

Private individuals have long played a key role in enforcing federal rights. Yet in a series of recent decisions, the Supreme Court has limited the ability of individuals to enforce federal rights through private suits. In Alexander v. Sandoval, for example, the Court held …

Essay

Insider Abstention

113 Yale L.J. 455 (2003)

Scholars writing on insider trading have long believed that insiders can beat the market simply by using nonpublic information to decide when not to trade. Using a simple model, this Essay has shown that the conventional wisdom is wrong. Insiders prevented from trading while …

Note

Leaving FISA Behind: The Need To Return to Warrantless Foreign Intelligence Surveillance

113 Yale L.J. 179 (2003)

In a locked, windowless room with walls of corrugated steel, in a restricted area of a Justice Department building in Washington, sits the Foreign Intelligence Surveillance Court (FISC). Conducting proceedings completely hidden from the public, as mandated by Foreign Intellig…

Note

A Robust Public Debate: Realizing Free Speech in Workplace Representation Elections

112 Yale L.J. 2415 (2003)

The First Amendment stands as a guarantor of political freedom and as the "guardian of our democracy." It seeks to expand the vitality of public discourse in order to enable Americans to become aware of the issues before them and to pursue their ends fully and freely. As t…

Note

Billboards and Big Utilities: Borrowing Land-Use Concepts To Regulate "Nonconforming" Sources Under the Clean Air Act

112 Yale L.J. 2553 (2003)

I have suggested the incorporation of amortization provisions as a potential solution to the continued emissions problem posed by coal-burning electric utilities built prior to the original Clean Air Act. Thirty years after the Act's passage, these problematic sources have n…

Comment

A "Flip" Look at Predatory Lending: Will the Fed's Revised Regulation Z End Abusive Refinancing Practices?

112 Yale L.J. 1919 (2003)

The regulation of predatory loans can be a tedious business. The whole topic redounds of such yawn-inducing terms as "single-premium credit insurance" and "negative amortization." Yet the human costs of predatory lending are no less real for all the financial jargon that mas…

Comment

Chevron Deference and Treaty Interpretation

112 Yale L.J. 1927 (2003)

One need not accept Hobbes's vision of international relations as a perpetual "condition of warre" to recognize that the rule of law does not always govern international affairs. The inevitable tension between foreign policy objectives and rule-of-law values in U.S. foreign…

Comment

Responsible Direction and the Supervisory Status of Registered Nurses

112 Yale L.J. 665 (2002)

The National Labor Relations Board (NLRB or the Board) has, for many years, wrestled with the problem of whether various classes of professional employees who regularly exercise discretion and judgment in their jobs should be classified as "supervisors" and therefore denied t…

Comment

Reorganization as a Substitute for Reform: The Abolition of the INS

112 Yale L.J. 145 (2002)

September 11th and the events that followed highlighted the shortcomings of our nation's immigration policies and their enforcement. Gaffes, such as the issuance of student visas to two of the hijackers on the six-month anniversary of 9/11, reinforced public perceptions that …

Essay

Probability Neglect: Emotions, Worst Cases, and Law

112 Yale L.J. 61 (2002)

In this Essay, my central claim has been that the probability of harm is often neglected when people's emotions are activated, especially if people are thinking about the worst-case scenario. If that scenario is vivid and easy to visualize, large-scale changes in thought and b…

Review

Tobacco Unregulated: Why the FDA Failed, and What To Do Now

111 Yale L.J. 1179 (2002)

The book jacket promises drama. David Kessler, former Commissioner of the Food and Drug Administration (FDA), is said to tell "a gripping detective story," a story of "right and wrong" and "moral courage." The "unlikely heroes" are a small team of FDA employees who set out t…