Browsing by Author "Murphy, Richard W."
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Item Chenery Unmasked: Reasonable Limits on the Duty to Give Reasons(2012) Murphy, Richard W.Eighty years ago in SEC v. Chenery, the Supreme Court declared, “an administrative order cannot be upheld unless the grounds upon which the agency acted in exercising its powers were those upon which its actions can be sustained.” Translation: Courts and agencies must not deploy post hoc rationales during judicial review to save discretionary administrative actions. Over time, this contemporaneous-rationale rule has seeped deep into the marrow of administrative law. But this Chenery rule is wrong — or at least not quite right. Chenery’s basic, procrustean mistake was to state a categorical rule even though reliance on post hoc rationales is sometimes sensible. Courts have reasonably responded to this overreach by cheating on Chenery. The law in this area is therefore more confused than it should be, which impedes clear thinking about how post hoc rationales could be integrated into administrative and judicial procedures to improve them both. Chenery's bar is, at bottom, a judicially-crafted, common-law style rule designed to encourage agency responsibility and judicial efficiency. It is not constitutionally compelled. Courts therefore can change it, and they should do so, giving up Chenery's misleading clarity for a pragmatic, rule-of-reason approach. Or, as Judge Friendly suggested over forty years ago, courts should recognize that applying Chenery is “perhaps more art than science.”Item Constraining White House Political Control of Agency Rulemaking Through the Duty of Reasoned Explanation(2015-04) Murphy, Richard W.; Shapiro, Sidney A.Over the last several decades, presidents of both parties have sought to control the rulemaking power of agencies by entrenching a system of centralized White House review of agency rules conducted by the Office of Information and Regulatory Affairs (“OIRA”). While OIRA review has important and valuable functions, it also provides a vehicle for increasing the role of political considerations in the rulemaking process as well as the vast power of special interests. This Article explores two novel means by which courts and litigants, without waiting for congressional or executive action, might deploy administrative law’s traditional tool for limiting the influence of politics — agencies’ duty of reasoned explanation — to shed needed sunlight on centralized review of rulemaking. More specifically, interested persons should be able to use petitions for rulemaking to require agencies to give prompt, technocratic, public-regarding explanations for delays caused by centralized review. Also, agencies should be required to give reasoned explanations for policy changes they make due to centralized review.Item Hunters for Administrative Common Law(2006) Murphy, Richard W.Some years ago, in Alaska Prof. Hunters Ass'n v. FAA (APHA), the D.C. Circuit held that an agency must use notice-and-comment rulemaking to change regulatory interpretations that have hardened into "administrative common law." The court was concerned that, absent such a requirement, agencies would enjoy excessive power to shift among plausible regulatory interpretations, thus sandbagging regulated parties. Administrative law scholars have roundly condemned APHA, but it is firmly embedded in the D.C. Circuit and has spread to others. Maybe the courts are on to something. Notwithstanding its flaws, APHA's invocation of "administrative common law" suggests an illuminating way to think about agency interpretive discretion. On a traditional approach to stare decisis, courts should have strong justifications for departing from their precedents, but the legislature is free to override them at any time for pretty much any reason. Translated into an administrative setting, this model might require an agency to have a strong justification for overruling its precedent by non-legislative means. This would allow agencies to overrule cheaply precedents that have proven to be unworkable or badly reasoned. Where an agency cannot offer a strong justification for overruling a precedent, it would need to use legislative rulemaking to do so. This requirement would tend to increase the cost of overruling workable, reasonable precedents upon which regulated parties have come to rely. Adopting the proposed "administrative common law" model might enhance agency interpretive consistency while at the same time preserving agency discretion to change course quickly and cheaply where there is a pressing need to do so. The model might also tend to shunt politically motivated efforts to shift from one reasonable interpretation to another towards notice-and-comment rulemaking, the agency procedure best suited for making political changes.Item Judicial Deference, Agency Commitment, and Force of Law(2005) Murphy, Richard W.The law governing judicial deference to agency statutory constructions is a complex brew of improbable fictions and proceduralism. One reason this state of affairs persists is that courts have failed to resolve a contradiction between two competing, sensible impulses in deference doctrine. Oceans of precedent over the last 150 years have stressed that courts should defer to longstanding, reasonable constructions by agencies of statutes they administer. Then along came Chevron, which extolled agency flexibility and instructed courts to extend strong deference even to interpretive flip-flops. Competition between the virtues of interpretive consistency and flexibility has bubbled through and confused judicial deference analysis ever since. The Supreme Court's recent efforts to limit the scope of Chevron's strong deference to agency constructions that carry the force of law has worsened such confusion, in part because the Court's discussion and application of this concept were incoherent. This Article proposes a commitment approach to this force-of-law limitation that has deep roots in the concept of the rule of law and considerable power to clarify deference doctrine by resolving the clash between the competing values of interpretive consistency and flexibility. For the rule of law to be genuine, the default position must be that laws have general applicability - i.e., the law for X should be the law for Y as well. This truism suggests that an agency's statutory construction properly can enjoy the force of law only where the agency has committed to applying its construction consistently across time and parties. Where an agency's construction is longstanding, the agency's commitment to consistent application is self-evident. The puzzle, of course, is to reconcile this commitment approach with Chevron's praise of interpretive flexibility. One solution is to recognize that an agency can genuinely commit to a new interpretation by adopting it in a manner that makes it costly to change course later. Where agencies commit to consistency in this way, there is less need for courts to engage in independent statutory construction to protect rule-of-law values, which should leave courts freer to accept the premise of strong deference that the best way to determine the meaning of an agency's statute is to trust the agency's own (rational) construction.Item The Limits of Legislative Control over the "Hard-Look"(2004) Murphy, Richard W.This essay was prepared for a symposium where the price of admission was to propose an amendment to the Administrative Procedure Act. In partial compliance, this essay explored the constitutional implications that might flow from legislative elimination of the courts' controversial "hard look" gloss on the APA's arbitrary-and-capricious standard of review. The idea that the hard-look might have a constitutional dimension is not new. Not long after State Farm was handed down, Professors Shapiro and Levy contended that the hard-look is best understood as a manifestation of a separation-of-powers principle that requires courts to review executive action to preserve the rule-of-law values enshrined in the Constitution. This essay points out two other potential connections between the hard-look and constitutional doctrine. First, even if the hard-look is not itself a constitutional doctrine, its elimination could affect how courts interpret other means of judicial control which are rooted in the Constitution - e.g., might killing the hard-look even manage to breathe a little life into the Nondelegation Doctrine? Second, it may be the case that separation of powers demands that courts decide for themselves how to assess the rationality of agency action and that congressional elimination of the hard-look would violate this principle.Item NeuroCongress(2006) Murphy, Richard W.This mercifully brief excursion into philosophy of (congressional) mind starts with the premise that, although it is common to speak of legislative intent, an entity cannot form an intent without a mind to generate it. For those of a speculative bent who find themselves in work-voidance mode, this observation may spark questions concerning the mind/legislative-body problem. These questions apply broadly to all legislative bodies, but, without loss of generality and for ease of reference, one can focus them on Congress. Could Congress have a mind of its own? If it does, what is the qualitative nature of its mental experience - i.e., with due apologies to Professor Nagel, what is it like to be Congress? And what can reflection on the nature of such experience teach us about congressional intent? Some short answers: Given how little we know about why some bits of organized matter generate consciousness, we cannot exclude the logical possibility that Congress does lead some sort of mental life. But, alas, we will never be able to determine with any clarity what it is like to be Congress - the nature of its intents, sense impressions, or feelings will remain forever obscure. That said, there is no good reason to think that being Congress is like being Albert Einstein, John Malkovich, or any particular congressperson. And, in the cheap-shot department, there is a tempting argument to be made that Congress's intents are about as rich and complex as a roundworm's.Item A "New" Counter-Marbury: Reconciling Skidmore Deference and Agency Interpretive Freedom(2004) Murphy, Richard W.In National Cable & Telecomm. Ass'n. v. Brand X Internet Serv., 125 S. Ct. 2688 (2005), the Supreme Court held that a court's earlier construction of a statute should trump an agency's later construction otherwise eligible for Chevron deference "only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion." Dissenting, Justice Scalia remarked that the majority's new approach to the relation of stare decisis to Chevron created "a wonderful new world full of promise for administrative law professors in need of tenure articles." He also chided that "[f]urther de-ossification may already be on the way, as the Court has hinted" in Edelman v. Lynchburg College, 535 U.S. 106 (2002), "that an agency construction unworthy of Chevron deference may be able to trump one of our statutory-construction holdings." This Article explored just this Edelman possibility in a pre-Brand X effort to clarify agency power to trump judicial statutory constructions. Its key move was to reexamine the nature of Skidmore deference in light of lessons drawn from the hard-look doctrine. Measured respect for agency analysis is an integral part of a court's Skidmore construction problem. It follows that an agency - by changing its analysis of a statute - alters the question confronting a court called upon to construe it.Item Pragmatic Administrative Law and Tax Exceptionalism(2014-10) Murphy, Richard W.“Tax exceptionalism” holds that, like the animals of an island long cut off from a continent, the administrative law of tax has evolved into different forms than those found in general administrative law. Critics take a dim view of this diversity, contending that general principles of administrative law should apply in the tax context just as they do in others. This universalistic approach has the virtues of simplicity, elegance, and commitment to the rule-of-law concept that the law should be the same everywhere and for everyone. It runs the risk, however, of downplaying the virtues of pragmatism, flexibility, and realism. An objective look at the evolution of administrative law in the United States indicates that it is, and will likely forever remain, a muddled mess in important respects. This Essay’s simple contention is that courts and other commentators should give due weight to the history and virtues of this mess—and consider embracing the pragmatism and flexibility that it enables—before killing off more mutations from the island of misfit tax administrative law doctrines.Item Punitive Damages, Explanatory Verdicts, and the Hard Look(2001) Murphy, Richard W.Juries in most American jurisdictions can inflict punitive damages awards against tortfeasors who have committed especially blameworthy torts. Sometimes their awards are startlingly large; multi-billion dollar awards have become increasingly frequent. Nonetheless, juries are generally under no obligation to explain their use of this vast power; a punitive damages verdict typically takes the form of an unexplained number. This article explores how courts can and should change this practice.Item Separation of Powers and the Horizontal Force of Precedent(2003) Murphy, Richard W.The power of the courts and Congress to regulate precedential force has been the subject of recent judicial and scholarly foment. Most provocatively, Professor Michael Stokes Paulsen has argued that the Constitution's silence on this subject leaves room for Congress to strip targeted Supreme Court opinions of any precedential force. Other scholars and some judges have argued that stare decisis enjoys constitutional status, which limits the power of either Congress or the courts to destroy precedential force. This article contends, contra Paulsen, that stare decisis has constitutional import but that his conclusion that Congress can eliminate the horizontal force of precedent is nonetheless at least partially correct. The key to reconciling these inconsistent-sounding propositions is to recognize and harmonize two competing separation-of-powers principles: (1) the rule of law forbids officials from seizing more power than the law grants them; and (2) Congress, the lawmaker, has considerable discretion to delegate discretionary power to the executive and judicial branches. The first of these principles suggests the conclusion that courts cannot constitutionally eliminate their obligation, deeply rooted in common law, to show measured (though not absolute) deference to their own precedents. The second, however, suggests that Congress possesses power to release the courts from this constraint. In short, separation of powers permits Congress to grant a power that the courts may not legally seize.Item Superbifurcation: Making Room for State Prosecution in the Punitive Damages Process(1998) Murphy, Richard W.Punitive damages awards in tort cases have been a part of Anglo-American law since the eighteenth century. Debate over their propriety has raged ever since - particularly over the last two decades or so. Neither side in this debate is likely ever to convince the other. But we need not wait for them to do so before finding ways to improve the fairness of the punitive damages device. This article suggests that states adopt a reform one might call, for want of a better term, superbifurcation. This scheme would leave private plaintiffs in charge of proving punitive liability but would reward them for doing so with reasonable attorney's fees rather than a chance to win punitive damages. After a finding of punitive liability, a state prosecutor could bring a single action against the defendant for punitive damages based on its tortious course of conduct within the forum state, which would pocket any punitive damages awarded. The proposed reform would improve the current punitive damages regime by: (1) lessening the influence of plaintiff financial self-interest on the punishment process; (2) adding another layer of control to a punishment process that is alarmingly unconstrained in its present form; and (3) reducing the danger of repetitive punishment in the context of mass torts.