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1)
NY law says that the only wills that can be set aside are those with fraud or duress
in the inception of the willtext is very clear
Majority nonetheless sets it asidesays that the legislature would not have
intended Palmer being allowed to inherit
Also refers to common law maximno one should be able to benefit from their
own wrongdoingsays this canon was not abrogated entirely by statute in this
case
o Maybe a principle that statutes abrogating the common law must do so
explicitly? (Makes little sense, because most statutes that affect the
common law are passed for the purpose of changing it)
Strong purposivist case legislature was pretty explicit about what was allowed,
but court ignored it
Scalias opinion judge as grammarian experts fees are not covered under
attorneys fees (were treated separately in other fee-shifting statutes), and stuff
that isnt precisely an attorneys fee (e.g. paralegals, copying) was generally
understood to be included in the attorneys fee
Also makes much of rule against surplusageparts of statute would become
redundant if experts fees were included in attorneys fees
WVUH says statute was intended to return to pre-Alyeska regime, and that court
should interpret it in light of that purpose, but Scalia points out that purpose of
statute is not just what is changed but what is left alone, and best evidence of that
is text
o If Congress wanted to say it, they easily could have said it
It is not courts job to remedy what Congress forgot; it is not our function to
eliminate clearly expressed inconsistency of policy and to treat alike subjects that
different Congresses have chosen to treat differently
Stevenss opinion broader purpose of statute was to make civil rights cases
easier to be broughtif you cant reimburse expert fees then it will frustrate civil
rights litigations
Thinks that Court should guess what current Congress would do, and carry that
into effectpoints out that when court adopts ultra-textualist approach, it usually
ends up being overridden by Congress
Opinion heavy on legislative history, which Scalia discounts
We do the country a disservice when we needlessly ignore persuasive evidence
of Congress purpose and require itto restate its purpose in more precise
English
o Also says that Title VII (Civil Rights) uses the word race, and the Court
has read Title VII to mean any discrimination against any person,
regardless of their race, because of their race
o Congress did not have social history of the phrase discriminate on basis
of age as the ill it wished to cure when it passed this statute
Case is important as an example of textually-constrained purposivism they have
to find ambiguity, and only then go to purpose
Have seen this kind of reading in other case (Zuni (textually-based purposivism),
Milner (Kagan rejects purposivist reading because too far from the text))
Congress will soon fix it, but false positives might be uncorrected because certain
powerful groups favor them
United States v. Locke (1985)
Issue in filing mining claims does a provision in a statute saying they must be
filed prior to December 31st mean that of does it also include December 31st in
there?
Court says plain language of statute does not mean on or before December 31st,
and nothing in legislative history deals with what date was actually meant
Even though this doesnt really make sense, court must apply it unless there is
something to suggest that it wasnt meant to be read this way; there isnt
(agencys construction of statute has been consistent with prior to, not on or
before), so claim must fail
o To do otherwise would be legislation, not judging
Dissent (Brennan, Stevens)
o This creates a trap for unwary property owners; statue is either ambiguous
or result of scriveners error
o Wont presume that Congress deliberately created a trap for the unwary
Scriveners Error
Doesnt scriveners error in essence on determining that application of statute
would be absurd?
Alternatively as courts emphasize grammar more and more, does it really make
sense that Congress is paying a ton of attention to commas and semicolons?
e) What is the Text? (Nix; Moskal; Smith v. US; Muscarello)
Nix v. Hedden (1893)
Case hinges on whether meaning intended was ordinary or scientific meaning
Tomatoes fruit or vegetable for purposes of a tariff, whether tomatoes are
considered a fruit or a vegetable
Nix pays tariff to Hedden for tomatoes, but he says tomatoes are fruits, not
vegetables, so he shouldnt have to pay the tariff
Question as to whether court should use ordinary meaning or scientific meaning
court uses the ordinary meaning, and says tomatoes are used the same as
vegetables so theyre vegetables for the purpose of this statute
No real empirical basis for the Courts distinction
Criticism - specific audiencestatute aimed at the produce industryso
presumably they would know that tomatoes are in fact the fruit of the vine
Moskal v. United States (1990)
Whether you look to how a term is used as a legal term of art or whether you look
to its more ordinary meaning
Petitioner participated in a scheme where odometers were rolled back and titles
forged in Pennsylvania, then Moskals petitioner washed the titles by reregistering the cars, and then sent them back to Pennsylvania
Moskal indicted and convicted under statute making it a crime to transport in
interstate commerce any falsely made, forged, altered, or counterfeited
securities; he claims he is innocent because titles were not actually falsely made
they were real titles, just with wrong information
Ordinary meaning benefits the government more, but specialized legal meaning
(established common-law meaning when Congress made the statute) of falsely
made is forged; as so defined, falsely made excluded authentic or genuine
documents that were merely false in content
Canon of construction where a federal statute uses a common-law term of
established meaning without otherwise defining it, the general practice is to give
that term its common-law meaning
o Marshall (majority) says that the common-law meaning is not clear; there
was divergence among federal courts, and when words have no fixed
usage in common law then look to the statutes purpose
o which was to criminalize trafficking in fraudulent securities that
exploits interstate commerce; based on that purpose, think that Congress
meant to adopt ordinary meaning
o Also a surplusage thing thereif falsely made means forged, then forged
means nothing
Scalia dissent
o Thinks falsely preceding made means the manner of making, not the
nature of the product made inexpensively made painting is not the same
as an inexpensive painting
o Surplusage rule is generally sound, but cannot be used to distort a terms
ordinary meaning as it is here
o But falsely made also had well-established common-law meaning when
statute was passed, and that meaning should be applied
11
Committee reports and sponsor statements are the most important hierarchy
When in time the history occurredmaterial in front of Congress when the bill is
passed is more helpful (though there are exceptions, see e.g. Montana Wilderness)
Exxon Mobil Corp. v. Allapattah Services, Inc. (2005)
12
Class-action diversity case; question is whether all plaintiffs in a class must meet
the amount-in-controversy requirement or only some of them need to meet it
whether 28 USC 1367 overruled Zahn
Debate over the usefulness of specific legislative history, rather than the
usefulness of legislative history as a whole
o Committee of judges (chaired by Posner) drafts text for statute and notes
in a footnote that it would overrule Zahn
o House adopts the text without changing itso did they also adopt it with
the idea that Zahn would be overruled?
Subpointhe House Report stated that the law would restore the
pre-Finley regimeand cited Zahn in a footnote
Kennedys response is that the House Report is no more probative than the Posner
committee report
Corning Glass Works v. Brennan (1974)
Question as to whether working at night vs. working in the day makes a difference
as to whether people work under similar working conditionsmust pay equally
if they are (men only work at night), but dont have to if they are not similar
conditions
Key insight here is whether you can use legislative history not as probative of
legislative intent but as an external source of information about technical
meanings of terms and decisions to use words and given them a technical
meaning
o Court here uses legislative history to show that surroundings and
hazards as used in bill was a technical term, and thus did not include time
of day that work was done
h) Dynamic Statutory Interpretation
Dynamic Statutory Interpretation
Basic idea is that judges should distinguish between specific intent of some
provisions and general intent of a legislature who passes the statute, and follow
general intent where specific intent conflicts
o E.g. if legislature tells you to feed a child only one kind of meat, but that
type of meat disappears, you can figure general intent was to feed the child
some meat and just buy something else
o Issue with that is that maybe legislature really did only want that type of
meat used maybe it was for health purposes, or price, or something else
Arguments against
o Countermajoritarianjudges usurping legislative power
o Institutional competence (see above)
o Rule of lawcourts are just changing interpretations on the fly
Advantages
o Flexibility allows judges to carry into effect legislatures larger purpose
o Many of same advantages as purposivism
Judges dont often say they are engaging in dynamic statutory interpretation
13
16
o Do you use this canon (and all canons) all the time, or only when text is
genuinely ambiguous?
o Is ejusdem generis in conflict with the presumption against statutory
surplusage?
If the generic term at the end includes things like those that were
listed, then it includes the things that were listed, making them
superfluous
But isnt this redundancy entirely understandable and within
common usage? And if you didnt have specific, how could you
know what general means?
Expressio Unius et Exclusio Alteris
Definition when a statutory provision explicitly addresses or includes particular
things, other things are implicitly excluded
Application Silvers v. Sony Pictures Entertainment, Inc. (9th Cir. 2005)
o Question as to who is allowed to sue for copyright infringement; key
phrase is the legal or beneficial owner of an exclusive right under a
copyright is the person allowed to sue (lady wants to sue for
infringement, but she wrote movie under contract, so she doesnt hold
right to copyrightcompany she was under contract with assigned her the
right to sue, but thats it)
o Court decides case on expressio unius groundsCongress lists out who
can sue for copyright infringement, which means that anyone not listed
cant sue
o Dissent criticizes thissays statute was explicitly (per legislative history)
meant to expand copyrights rights, and restricting rights in this way when
the text itself is somewhat unclear is illegitimate
Criticism
o When does canon apply? How do you tell when something specific is
mentioned by way of example vs. when its meant to exclude other things?
o Doesnt expressio unius directly contradict the standard habit of speech of
most people?
o Should it only be used when Congressional intent cannot be discerned?
What is the order of priority of different tools of statutory interpretation?
Noscitur a Sociis, Presumption Favoring Consistent Meaning, and Presumption
Against Surplusage
Presumption favoring consistent meaning same word or phrase has same
meaning in different sections in the same statute
Noscitur a Sociis words meaning can be clarified and narrowed by meaning of
words surrounding it
Presumption against surplusage each word in statute has independent meaning
such that interpretations which would render it superfluous are disfavored
Application(s) Gustafson v. Alloyd Company, Inc. (1995)
17
o Whether under 12(2) of the Securities Act includes a sales contract under
its definition of prospectus (if it does, then if you make material
misstatements you can rescind the contract)
o Majority looks at the statute as a whole, and decides that since 10 says
that prospectus must contain all information in a registration statement,
and no contract would contain that, then contract cannot be prospectus
Says that prospectus must mean the same thing in every section
o Dissent says thats total bullshit; look at the provision in question, then the
definitional section, and then the statute as a whole
o Definitional sections says the term prospectus means any prospectus,
notice, circularprospectus includes other things besides prospectus,
and communication (which is in there) certainly includes a contract
o Mostly just know that this is a case where these canons kind of bump into
one another, and court has to prioritize
Criticism consistent usage
o Majority opinion above favors this approach
o You can drag into an opinion irrelevant parts of statute that neither
plaintiff nor defendant is interested in just because you need them for
meaning
o Entirely possible that Congress intended the word to mean different things
in different places
o Does same presumption apply when Congress uses same word in different
statutes?
Per court in Northcross, answer is yes when they deal with similar
issues
Criticism noscitur a sociis
o In case above, communication read more narrowly due to noscitur a sociis
o Is this right? Doesnt this disable Congress from ever combining broad
terms with narrow terms?
o When is it appropriate to be used? Only when relevant statutory term is
ambiguous, or when its clear but in a list?
Criticism surplusage
o Do we really usually express ourselves in ways that avoid redundancy?
Does the fact that its a statute make a difference?
o Tension between ejusdem generis, noscitur a sociis, and presumption
against surplusage
19
20
21
Separation of Powers
22
Delegation
Arguments in favor
o Various agencies have specialized expertise that makes them more capable
of setting effective policy than Congress/the courts
o Also agencies are more divorced from political realities
Counter is that agencies obviously take politics into accounts duh
o Agencies are a necessity in modern society, and the alternatives not
passing laws that we need or delegation to the courts are far worse
Arguments against
o Rejects/argues against fundamental commitment to separation of powers
o Vesting Clause all legislative powersshall be vested in [the]
Congress argues that Congress cannot delegate that power
But necessary and proper might allow Congress to delegate its own
power
Even if it vests legislative power, that does not necessarily mean
said power cannot be transferred
Unclear that agencies exercise legislative power
23
Nondelegation Generally
Per Cass Sunstein, has had one good year and 211 bad ones (and counting)
Court really has washed its hands of thissee e.g. Whitman
A.L.A. Schecter Poultry Corp. v. United States (1935)
Live poultry code; what amount of discretion under NIRA to Department of Labor
allows executive to prescribe codes of fair competition for any industry
basically allows him to regulate the economy as he sees fit
Only constraints are that the codes effect the policy in Title I of the act and that
the associations not imposes restrictions on admission to membership or permit
monopolies or monopolistic practices
Why is this a bridge too far?
o Authorizes the executive branch/trade associations to create their own
legislationconveyed legislative power to the executive branch
o Even more than that, it conveys that same power to the industry groups
o Fair competition is too vague a phrase to provide the president with an
intelligible principle
o Even though FTC act also uses a similar phrase, it has a set of
administrative procedures as safeguardsCongress set up a commission,
and you could file a formal complaint and have a hearing, etc.the NIRA
has no such procedure
o Scope of the statute is too largecovers literally the entire economy
24
Acting under authority of the Occupational Safety and Health Act of 1970, the
Secretary of Labor, after having demonstrated a link between exposure to benzene
and leukemia, set a standard reducing the airborne concentrations of benzene to
which workers could be exposed. The standard reduced the allowable amount
from 10 parts per million (ppm) to one ppm. This case was decided together with
Marshall v. American Petroleum Institute.
o Statute said secretary could decide adoption of regulation reasonably
necessary or appropriate to provide safe or healthful (places of)
employment
Did the Secretary exceed his authority to set standards?
25
Yes. Secretary had acted without knowledge that the new standard was necessary
to "provide safe and healthful employment" as mandated by the Act. Nothing in
OSHA's administrative record indicated that exposure to benzene at 10 ppm
would cause leukemia and that exposure to one ppm would not.
o Since the Secretary had not made a threshold finding that exposure to 10
ppm posed significant health risks, he was powerless to promulgate the
new standard.
o Must have conclusive evidence before allowed to regulate otherwise the
regulation is outside the allowance of the authorizing statute.
Saying that Agency has regulated outside of scope of the authorizing statute or not
in accordance with it is the most common way now of enforcing a non-delegation
principle without actually invalidating statute as an unconstitutional
nondelegation
Powell concurrence wants cost-benefits analysis as well
Rehnquist concurrence thinks this violates nondelegation
Marshall dissent thinks majoritys opinion is nondelegation without coming
out and saying it; says its impermissible for court to twist the statute in that way;
would just allow this
Congressional Control of Delegated Power (INS v. Chadha)
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28
While statute does limit removal to only being for certain reasons, said reasons
are broad enough that they can encompass almost any conduct
Stevens concurrence its legislative, but theres no bicameralism and
presentment so law is still unconstitutional
White dissent this is of really minimal importance to the legislative scheme and
does not present a threat to separation of powers; removal is fully controlled, and
thats just fine
Appointment and Removal: Modern Doctrine (Morrison v. Olson; Peekabo)
29
o Practically, hes concerned about the fact that someone who takes this job
is essentially signing up to prosecute a specific personso of course
theyre going to be zealous, and theres no real protections
Justice Scalia feels unitary executive/separation of powers is so profoundly
important because it screws up democratic accountability when you dont have it,
and because president needs to have executive policy be consistent, etc.he
thinks it is legally incorrect and practically a really bad idea
30
o Yes
Clinton did it, and Reagan did it, and Bush did itso nonpartisan
people think its a good idea
Introduces political accountability into the processthough the
counter to this is that most people have no idea what OIRA is
Agencies systemically inclined towards overregulationnot doing
things is never an option normally, and this helps with chilling that
Agencies captured? Maybe regulated groups have captured
agencies
o No
May lead to too much emphasis on regulatory costs
May lead to too much emphasis on politics
May delay important regulations
OIRA head not likely to have substantive expertise in areas in
which the agencies operate
Cant really challenge OIRAs review in court
Provisions in orders that require agencies to submit their regulatory agenda are
these ok?
Formal/Informal Rulemaking
Formal Rulemaking
o Formal rulemaking is governed under procedures laid out in 556/557
o Required if agency rule in question [is] required by statute to be made on
the record after opportunity for agency hearing (553(c))
o Provide for an adversarial hearing where proponent of rule carries burden
of proof and must show that proposed rule is supported by reliable,
probative, and substantial evidence
o Hearing presided over by Administrative Law Judge
o Final rule must be based on record promulgated in hearing
Informal Rulemaking (notice-and-comment rulemaking)
o Governed by 553 of the APA
o Three main procedural requirements:
Must give public Notice by publishing NPRM in Federal Register
NPRM must include statement of time, place, and nature of
public rule making proceedings, reference to legal authority
under which rule is proposed, and either terms or substance
of proposed rule or description of subjects and issues
involved
Agency must provide public with opportunity to comment on
agencys proposal
If agency decides to promulgate a rule, it must publish an
explanation of rule (incorporate in the rules adopted a concise
general statement of their basis and purpose)
o No requirement that a final rule be based on any record compiled during
the proceedings
Today, the vast majority of rulemaking is informal (thanks to Florida East Coast);
really the only exception is when statute requires formal rulemaking
Formal/Informal Adjudication
Formal adjudication
o Governed by 556 and 557
o What people think of when they think of agency adjudicationstrial-like
adversarial hearings that involve an agency seeking to impose some sort of
penalty on a regulated party or attempted to resolve a dispute between two
or more parties under a regulatory scheme
o Formal adjudications require an opportunity for oral presentation (except
in cases involving claims for money or benefits or applications for
licenses)
Informal adjudication
o No section of APA that deals with this directly; inferred from the text
o Minimal procedural requirements
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33
Court basically says that there is a distinction between prospective rules that
affect all parties in an industry and proceedings that adjudicate disputed facts in
particular cases; here, this is a prospective rule, so oral argument not necessary
o Upshot of this is that unless a statute basically uses the exact words
contained in the APA as to when formal rulemaking is required, court will
not construe it to require formal rulemaking
Douglas dissent thinks this is due process violation; this is essentially a rate
order, and thinks cant saddle people with that without a full hearing
Book says concern about overproceduralization animates the case Court doesnt
want agencies to get bogged down
Informal Rulemaking (Nova Scotia; Choc. Mfrs. Assn)
United States v. Nova Scotia Food Products Corp. (2d Cir. 1977)
FSA is concerned about botulism, so they promulgate a regulation as to how long
and how hot fish have to be cooked and salinity for cooking; whitefish
manufacturers say that cooking their fish that long is not commercially viable
Note that this is an enforcement proceeding, and not a direct challenge to the rule
Three challenges:
o Beyond authority delegated by the APA (rejected, irrelevant)
o FDA improperly relied on undisclosed studies in formulating regulation
o No adequate statement setting forth purpose and basis of regulation
Court says that FDA must disclose the studies it relies on; otherwise Nova would
not have a reasonable opportunity to comment and concise general purpose would
be inadequate
o When basis for proposed rule is scientific decision, scientific material
which is believed to support rule should be exposed to view of interested
parties for their comment. One cannot ask for comment on a scientific
paper without allowing the participants to read the paper.
Also says FDA needed to respond to Novas comments on commercial feasibility
of regulationmajor issues need to be commented on
o Basically, if you can just ignore vital comments then the concise general
statement would not be an adequate safeguard against arbitrary decisionmaking, which courts must reverse under 706 of APA
o Agencies must address comments that raise questions of cogent
materiality
Basically, opportunity to comment is construed here not in a narrow sense but in a
broad senseinterested parties must have a meaningful opportunity to comment
Adverse consequences of move to paper hearing
o Judges procedural rulings are outcome-driven
o Expanded proceduralization may favor those affected interests with
greater ability to mobilize resources to provide more or better information
to rulemaking agency disadvantages the little guy
o 553 now overproceduralized rulemaking too cumbersome, costly, and
lawyer-driven, which undermines flexibility of agency
34
Rybacek v. EPA (1990) and Ober v. EPA (1996) how can they be distinguished
Rybacek
o Agency, during rulemaking comment period, solicited new information
and then denied the opportunity to comment when it finalized the rule and
included additional material in response to initial comments
o Petitioners cannot comment on new material
o Court says additional material was agencys response to comments made
during a public-comment period; they can add supporting documentation
o Concern that if agency is required to allow comment on new rule, could
trap agency in endless cycle of comment changes in response to
comment comment etc.
Ober
o Same facts, basically, but EPA solicited facts from a third party
o 9th Cir. distinguishes from Rybacek on that grounds says that stuff in
Rybacek was EPAs internal response to public comments, but that Ober
involved new information solicited from third party
Chocolate Manufacturers Association v. Block (4th Cir. 1985)
At issue here when does agency have to provide supplemental notice e.g.
when agency decides to change a proposed rule, when must it allow parties a new
opportunity to comment
WIC programbasically providing federally funded food and drink to people
takes a close look at health and decides it wants to eliminate sugary stuff
Original rule proposed specifically includes flavored milk as a food that would
continue to be eligible for WIC program; there were some comments from local
WIC supervisors saying flavored milk should be eliminated
Post-comment, Dept. of Agri. decides to eliminate flavored milk, and Choc.
Manu. Assoc. sues to say that they are violating 553they dont have an ability
to comment on this particular rule because this drastic a change was not
contemplated in original rule
Basically court doesnt think that Choc. Manus. didnt get a fair opportunity to
comment because new rule was so drastically different with no indication
Thinks that agencys original proposal was replaced by one that reached the exact
opposite conclusion, based on comments from only one set of parties representing
a single view of the controversy
Court adopts a logical outgrowth testnotice is adequate if changes in the
original plan are in character with the original scheme and the final rule is a
logical outgrowth of the notice and comment already given
o Does this give agencies an incentive to be vague, so that lots of things
could be logical outgrowths?
If initial notice is too vague, court might deem it inadequate
Practically, agency wants rulemaking process to be efficient, and
vagueness would not help with that
35
c
Intro
36
Yes, rulemaking would give wider views, but NLRB had discretion to decide that
adjudication would also produce the relevant views
39
Interpretive Rules
553(b)(A) exempts interpretative (interpretive) rules from notice-and-comment
Interpretive rule is declaration of how an agency interprets an ambiguous statute
or regulation
American Mining Congress (AMC) v. Mine Safety & Health Administration (D.C. Cir.
1993)
Whether Program Policy Letters of the MSHA stating agencys position that
certain x-ray readings qualify as diagnose[s] of lung disease within the meaning
of agency reporting regulations are interpretive rules
Four-part test for whether rule is interpretive rule has legal effect, and is
therefore not interpretive, if:
o in the absence of the rule there would not be an adequate legislative basis
for enforcement action or other agency action to confer benefits or ensure
the performance of duties;
o the agency has published the rule in the Federal Register;
o the agency has explicitly invoked its general legislative authority; or
o the rule affectively amends a prior legislative rule
Here, agency is basically filling in the blanks a term in a statute required a
definition, so agency it defined; it still could have done enforcement actions
without the definition, and did not invoke its legislative authority or publish in the
federal register
Only real issue is whether it amends a prior legislative rule; answer is no; a rule
does not become an amendment simply because it supplies crisper and more
detailed lines than the authority being interpreted (otherwise all interpretations
would require notice-and-comment)
Big issue here is that its really difficult to tell the difference between lawmaking
and law implementationwhen does a definition/interpretation change the law?
e
Intro
Judicial Review of Agency Procedure and Policy (Arbitrary and Capricious Stuff)
(Ethyl Corp.; Vermont Yankee)
Courts can compel agency action unlawfully withheld or unreasonably delayed
(706(1))
o These orders are pretty uncommon
Courts also required to hold unlawful and set aside agency action, findings, and
conclusions found to be:
40
41
Key question here is that gasoline additive makers say that agencys decision to
ban lead fuel additives was arbitrary and capricious
Panel (Wilkey) says agencys decision is arbitrary and capricious because it was
not supported by evidence
Reheard en banc; views:
o Judge Skelly Wright
Not arbitrary and capricious if it is based on a consideration of
relative factors and there is evidence that is suggestive of the
decision being right
Basically wants rational basis review if you can see a basis in the
evidence for agencys decision, then its ok, as it was here
Agency allowed to make explicit or implicit assumptions not
supported by direct evidence
Decision arbitrary if no reasonable person, confronted with
evidence before the agency, could reach conclusion agency did
o Judge Wilkey
Articulates a basically similar standard, but disagrees with Judge
Wright on the application
Wilkey thinks that if there is a gap in the chain of reasoning, its
dispositive that agencys decision was arbitrary and capricious
Compare to mathematical proofmisses a link in chain of
reasoning
Decision arbitrary if it relies on unstated or unsupported inferences
Positivemakes agencies think through objections that have been
raised in a very positive way
Negativeunclear as to whether this standard is consistent with
text of 706is agency really required to prove its policy?
o Chief Judge Bazelon
Thinks that courts simply lack the ability to accurately judge
technical cases like this
Thus, courts should focus on whether procedures were adequate
The process making a de novo evaluation of the scientific
evidence inevitably invites judges of opposing views to make
plausible-sounding, but simplistic, judgments of the relative weight
to be afforded various pieces of technical data
Somewhat supported here in that two sides come to
opposite conclusions on whether agencys decision is
arbitrary and capricious
o Judge Leventhal
Thinks Bazelon is wrong
Says an abandonment of substantive review is entirely
inappropriate
Restraint yes; abdication no.
42
The Hard Look Doctrine (Modern Arbitrary and Capricious) (State Farm)
Modern arbitrary and capricious review follows the standard set out in the case
belowadopts and expands Overton Parks concept
43
Issue is what particular safety standards to prescribe for cars airbags, auto
seatbelts, or manual seatbelts
Laid out three options
o First two are switch-ups and delays in timing
o Rescission option is the third one
Agency concernedreopening rule and revisiting it because they are concerned
about public rejection of rule and because manufacturers/insurance companies are
complaining
Becomes clear that car manufacturers will only use automatic belts; wont be
using airbags, but public hates automatic seatbeltswill seriously hurt your
utilization rates
44
Relevant factors:
o Thoroughness evident in consideration of interpretation
o Validity of reasoning
o Consistency with earlier and later pronouncements
o All factors which give decision power to persuade
Is this a thumb on the scale? Yeah, its kind of persuasiveness, plus mindfulness of
special position and expertise of the agencynot Chevron
Know Skidmores out there, and know to think as to whether if Chevron isnt
available, Skidmore is
46
g
Intro
AT&T would argue that pretty much every dictionary around uses modify to mean
a very small change, and its a major change
o Additionally, text itself had a smaller feel
Is this really a modification?
o Scalia says this is not a modificationits more than that, as rate-filing is
a major part of a regulated industry, but does he really get to make that
decision?
o One wouldnt say the French Revolution modified the status of the
French royaltyequates a change like that with change contemplated by
FCC
Stevens, dissent says modify can mean what FCC wants it to mean, but more
importantly that Congress intended for FCC to have flexibility, Chevron intended
to preserve that flexibility, and this opinion cocks it up
Are textualist judges less likely to defer to agency constructions of statute? This
opinion (and empirical studies) suggest that they are
Doesnt the fact that a case made its way to the Supreme Court suggest that there
is at least some ambiguity? (Silbermans view)
o If a case is resolved at the first step of Chevron, one must assumea
petitioner has brought a particularly weak caseor the agency is sailing
directly against a focused legislative wind. Neither eventuality occurs very
often.
o If you exhaustively seek meaning of statutes, dont you end up
undermining the normative values of Chevron?
48
Food and Drug Administration v. Brown & Williamson Tobacco Corp. (2000)
Question as to whether tobacco is a drug within the meaning of FDCA FDCA
says FDA can regulate drugs and defines drugs as articles other than food
intended to affect the structure or any function of the body
FDAs argument is that duh, nicotine is a drug, and that allowing this to be a drug
within the meaning of the statute fits the purpose
Brown & Williamson says that it doesnt fit with structure here if FDA could
regulate it, theyd have to ban it, and they cant ban it
o Dissents response is to say that there is plenty of discretion there FDA
can regulate safety as Secretary may prescribe, so can regulate sale of
tobacco in a way that makes public more safe without outright banning it
B&W also says that FDA over all these years had repeatedly disavowed
jurisdiction over tobacco, and Congress has legislated in that arenathe
disavowal has in effect been approved by Congress
o Breyer says Congress has not explicitly stripped jurisdiction which is
what matters
o Also argue that Chevron is designed to allow for change so
circumstances have changed, we now know tobacco is harmful, new
evidence towards health effects and industrys intent so we should allow
FDA to change its mind
Should agencies receive Chevron deference when they are interpreting the scope
of their own statutory jurisdiction?
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o Some thinks courts decision in this case was animated by that concern
o However, Court in City of Arlington v. FCC (2013) held conclusively that
agency constructions of their own jurisdiction receive Chevron deference
h
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