(Washington Monument Pix © Larry Catá Backer 2016)
I recently announced the forthcoming publication by Carolina Academic Press of my Elements of Law and the United States Legal System (ISBN: 978-1-61163-927-8 • e-ISBN: 978-1-61163-984-1).
The work made sense as a century of legalization (here and here) and judicialization (here and here) forces more and more people worldwide to bump up against aspects of aspects of the U.S: legal system. The system is a complex amalgamation of distinct approaches to legalization, and the mechanics of its implementation, that tends to be mystifying to everyone, even individuals trained in law elsewhere. Most people tend to be hard pressed to explain the U.S. legal system either to non-lawyers or to foreigners, even sophisticated foreign lawyers or jurists, or for that matter to each other. Most would find it difficult unravel the distinct strands of law in the United States, each of which deeply embedded within their own internally coherent systems of generation, interpretation and application. The object of the book is to make the elements of law within the U.S. legal system more accessible and easier to invoke.
This set of posts provide interested readers with a more detailed description-summary of each chapter along with teaching objectives. After these descriptions I will circulate a chapter by chapter based draft Teacher's Manual. Comments welcome for all.
All contents posted on line may be accessed here:
Summary book organization and Chapter 6 Summary follows.
The work is divided into three parts and a historical preface. The Preface traces the origins of the materials and its objectives. It suggests as well the challenges of teaching normative or framing concepts around a profession based on the training in technique; in effect the book seeks to expose the underlying normative structures and patterns well embedded within the techniques that tend to center the study of law and legal subjects. Part I: What is Law? An Introduction, is divided into two chapters. Chapter 1 sets out a detailed roadmap for the materials built around an introductory problem that highlights the book's major themes. Chapter 2 then introduces the principal vocabulary, institutions and forms, starting with the issue of the connection between law, justice and the state. Part II: U.S. Law: System and Sub-Systems, then focuses on the principal components that together make up the U.S. legal system. Its five chapters each focus on three forms of law sub-systems. The first includes law articulated by the courts--common law and equity. The second touches on law articulated by legislatures--statutes and administrative regulations. The third focuses on emerging systems of governance beyond the state--private regulation, hybrid public-private regulation and social norms. Part III: Hierarchies of Law and Governance: The Relationship Between People, Law, and Government moves from the study of the specific characteristics of legal subsystems to their relationship to government. It speaks to the governmentalization of law. Its four chapters first consider the fundamental theories that tie law to the government, the role of rule of law concepts, the development of hierarchies of law within the domestic legal order of the United States and then the relationship of domestic to international law. Part IV: Institutional Architecture of Law and Governance: The Law of Government of the United States then considers the legal rules through which governmental regulatory authority may be exercised. If Part III spoke to the issue of the governmentalization of law, Part IV touches on the legalization of government. Its four chapters considers the fundamental principles of separation of powers and checks and balances, the constraining of administrative discretion, popular law making through initiative and referendum, and the legal structu8res of federalism. Part V: The Role of the Courts in the Application of Law: Judicial Review, Methodologies of Interpretation, and Legitimacy closes the circle by bringing the focus back to the courts and their engagement with law. The first of its three chapters touches on the doctrine of judicial review and the legalization of the authority to interpret and apply law beyond common law. The second of its chapters then considers the techniques of judicial interpretation and their relationship to judicial legitimacy. The last of the chapters then considers the binding nat8re of judicial opinion, especially the legal effect of judicial decisions interpreting statute.
The work made sense as a century of legalization (here and here) and judicialization (here and here) forces more and more people worldwide to bump up against aspects of aspects of the U.S: legal system. The system is a complex amalgamation of distinct approaches to legalization, and the mechanics of its implementation, that tends to be mystifying to everyone, even individuals trained in law elsewhere. Most people tend to be hard pressed to explain the U.S. legal system either to non-lawyers or to foreigners, even sophisticated foreign lawyers or jurists, or for that matter to each other. Most would find it difficult unravel the distinct strands of law in the United States, each of which deeply embedded within their own internally coherent systems of generation, interpretation and application. The object of the book is to make the elements of law within the U.S. legal system more accessible and easier to invoke.
This set of posts provide interested readers with a more detailed description-summary of each chapter along with teaching objectives. After these descriptions I will circulate a chapter by chapter based draft Teacher's Manual. Comments welcome for all.
All contents posted on line may be accessed here:
Summary book organization and Chapter 6 Summary follows.
The work is divided into three parts and a historical preface. The Preface traces the origins of the materials and its objectives. It suggests as well the challenges of teaching normative or framing concepts around a profession based on the training in technique; in effect the book seeks to expose the underlying normative structures and patterns well embedded within the techniques that tend to center the study of law and legal subjects. Part I: What is Law? An Introduction, is divided into two chapters. Chapter 1 sets out a detailed roadmap for the materials built around an introductory problem that highlights the book's major themes. Chapter 2 then introduces the principal vocabulary, institutions and forms, starting with the issue of the connection between law, justice and the state. Part II: U.S. Law: System and Sub-Systems, then focuses on the principal components that together make up the U.S. legal system. Its five chapters each focus on three forms of law sub-systems. The first includes law articulated by the courts--common law and equity. The second touches on law articulated by legislatures--statutes and administrative regulations. The third focuses on emerging systems of governance beyond the state--private regulation, hybrid public-private regulation and social norms. Part III: Hierarchies of Law and Governance: The Relationship Between People, Law, and Government moves from the study of the specific characteristics of legal subsystems to their relationship to government. It speaks to the governmentalization of law. Its four chapters first consider the fundamental theories that tie law to the government, the role of rule of law concepts, the development of hierarchies of law within the domestic legal order of the United States and then the relationship of domestic to international law. Part IV: Institutional Architecture of Law and Governance: The Law of Government of the United States then considers the legal rules through which governmental regulatory authority may be exercised. If Part III spoke to the issue of the governmentalization of law, Part IV touches on the legalization of government. Its four chapters considers the fundamental principles of separation of powers and checks and balances, the constraining of administrative discretion, popular law making through initiative and referendum, and the legal structu8res of federalism. Part V: The Role of the Courts in the Application of Law: Judicial Review, Methodologies of Interpretation, and Legitimacy closes the circle by bringing the focus back to the courts and their engagement with law. The first of its three chapters touches on the doctrine of judicial review and the legalization of the authority to interpret and apply law beyond common law. The second of its chapters then considers the techniques of judicial interpretation and their relationship to judicial legitimacy. The last of the chapters then considers the binding nat8re of judicial opinion, especially the legal effect of judicial decisions interpreting statute.
Chapter 6
Law Articulated by Regulatory Agencies: The Administrative Function
A. Introduction
B. Problem 6.1: Administrative Law Making
Gonzales v. OregonC. Law Articulated by Regulatory Agencies ― The Administrative Function
--Administrative Procedure ActD. Problem 6.2—The Constraints on Administrative Lawmaking
--Notes and Questions
--Breger, Administrative Law After Forty Years
--Notes and Questions
--Humphrey's Executor v. U.S.
--Notes and Questions
--American Library Association v. Federal Communications Commission et al.
--Notes and Questions
--Chevron U.S.A. v. Natural Resources Defense Council. Inc.E. Learning Objectives
--Notes and Questions
--U.S. v. Mead Corp.
--Notes and Questions
--A Note on Regulatory Power and Justice
--Loren A. Smith, The Morality of Regulation
--Notes and Questions
A. Introduction
In the preceding chapters, students have been introduced to three of the major forms of law that make up the legal system of the United States. The first was judicially administered law—corresponding roughly to what remains of the common law and equity. The second was the law articulated by the legislature, statutes. This is what many non-lawyers commonly understand as “law.” Together, these constituted the sum of the law-making authority of the early Republic. But changes, significant ones for law, came as a consequence of industrialization in the 19th century. Those changes challenged the traditional bases of law to continue to order society in a way responsive to the needs of the new institutions, cultures, and activities of the emerging national economic market and to hold together the fabric of a state increasingly transformed by waves of immigration. Moreover, the need for socialization attendant on immigration, and the requirements for social adjustments made necessary by the end of slavery from the mid-19th century, fueled a taste for the sort of social legislation that might have been novel in earlier periods. Industrialization brought with it an increasing need for law that went beyond the commands of statutes and could serve a regulatory function to bring order, certainty and predictability to the increasingly complex social and economic interactions that marked both industrialization and the urbanization of the U.S. population that came with it.
Social regulation, and the regulation of market activities required a distinct type of government culture—one that needed to play not merely the role of legislator, executive, and judge, but also the increasingly important role of manager. Managerialism was new to government in the 19th century. It has become the central element of how government functions in the 21st century. Managerialism requires constant supervision and rules that treat with great specificity highly technical areas of behavior or conduct. Everything from safety standards to the standardization of products called for new forms of government. That new form of government emerged through the establishment and enlargement of the functions of administrative agencies. These governmental offices were established to fill out and enforce on an ongoing basis legislation that increasingly merely set goals, targets, or objectives and delegated the details to organizations charged with their realization.
This chapter, then, considers the law produced by these administrative or regulatory agencies. These constitute an increasingly important set of “rules” promulgated by agencies on the basis of power delegated to them by the legislature through statutory “law.” They are not a substitute for law but a means for filling in gaps of law that is no longer able to specify with any degree of detail the rules necessary to meet the sometimes needs of regulation in highly technical fields. We will consider how this form of law making differs from statutes and the law of private disputes administered through courts.
To this end, students will be introduced to the characteristics, culture, and operation of regulatory systems in the United States. Though regulations may have an appearance similar to statutes, they are embedded in the U.S. legal system in a substantially different way. Students will consider three critical aspects of regulation that contribute to its unique character as one of the strands of U.S. Law. The first goes to the justification for regulation, that is, in systems with fully developed legislative organs, why is an additional layer of rulemaking necessary. The second goes to the function of contemporary administrative agencies. That is, the student is introduced to an important innovation in governance. The third goes to the relationship between regulation and the courts. That is, what are the key issues that courts confront when disputes arise connected to regulatory systems.
With the first, students consider how administrative regulation meets needs more effectively for a polity with an increasing taste for governmental regulation of important aspects of everyday life. With the second, students consider the actual extent of the functioning of a functionally differentiated administrative agency by looking to the work of the U.S. Securities Exchange Commission. With the third, we are introduced to two principal issues that make regulation different from statutory law: the power to control and dismiss administrators and the judicial role in the determination of the limits and constraints on administrative power—the issue of the jurisdictional limits to the exercise of administrative quasi-executive, quasi-legislative, and quasi-judicial authority.
The basic principle of separation of powers in the United States premises that the entirety of governmental power is vested in the government and then divided into three functions exercised by three distinct branches of government—legislative, executive, and judicial. In this way the legislature exercises the entirety of the legislative power, the judiciary the judicial power and the executive the administrative power. But these powers are constrained by the principle of checks and balances. Effectively action by any branch requires the cooperation of the others to be effective. For example, legislation may only be enacted by Congress but the President may veto legislation. But a Presidential veto may be overridden by supermajority vote in Congress. Yet even legislation so enacted may be overturned by the judiciary that retains the authority to interpret and apply it to cases over which it has jurisdiction.
The exercise of power by regulatory agencies does not follow this fundamental premise of separation of powers. Instead, regulatory agencies exercise power delegated to it by legislation as applied through the executive branch and interpreted by the courts. These delegations of power are functional in nature. For example, the National Labor Relations Board is empowered to oversee matters relating to labor unions; the Occupational Health and Safety Administration is charged with workplace safety; the Securities and Exchange Commission protecting investors, maintaining fair and orderly functioning of securities markets, and facilitating capital formation. These functionally differentiated divisions of authority limit the jurisdiction that agencies may exercise. But within their jurisdiction, agencies may exercise quasi-legislative, executive and judicial authority. That is, an agency may be empowered to issue regulation, to enforce the provisions of the legislation under which it is authorized to act (including its regulation), and to hold hearing to determine whether the regulations have been violated (with recourse to judicial appeal in many cases).
The problem that follows lays out the context in which the regulatory power is exercised in the United States. The issue touches on the difficulties of doing good in a complex domestic legal order in which the intent of law and the extent of regulatory powers may not be the same. As you consider the problem consider how the new environment of regulation might also think about notions of justice first considered with Justinian’s Institutes. The materials that follow will help students think about how administrative regulation meets needs more effectively for a polity with an increasing taste for governmental regulation of important aspects of everyday life. Students will also consider the actual extent of the functioning of a functionally differentiated administrative agency by looking to the work of the U.S. Securities Exchange Commission. Lastly, students will consider two principal issues that make regulation different from statutory law: the power to control and dismiss administrators and the judicial role in the determination of the limits and constraints on administrative power—the issue of the jurisdictional limits to the exercise of administrative quasi-executive, quasi-legislative, and quasi-judicial authority. Later chapters will take up some of these themes in more detail.Learning Objectives:
(1) This chapter seeks to provide the student with an introduction of Administrative and its role in the U.S. legal framework, and specifically introduces the student to “laws” promulgated by administrative or regulatory agencies.
(2) Students will be introduced to three critical aspects of regulation that contribute to its unique character as one of the strands of U.S. Law, justification for regulation, the function of contemporary administrative agencies, and the relationship between regulation and the courts.
(3) The student will be introduced to the rationale for administrative regulation over statutory or common law approaches by working through a problem regarding administrative law making.
(4) The student will be introduced to the Administrative Procedure Act and the procedural structures within which administrative agencies regulate under statutory authority.
(5) The student will be introduced and familiarized with the issue of agency power, and its alignment with the powers of the elected branches through a reading of Humphrey's Executor v. U.S.
(6) The student will be introduced to the issue of regulatory authority, the issues surrounding authority, and how it has dominated legislation through a reading of American Library Association v. Federal Communications Commission.
(7) The student will be introduced to the issues around judicial deference to agency determinations by working through a problem concerning an SEC “No Action Letter,” and through a reading of Chevron v. Natural Resources Defense Council, and U.S. v. Mead Corp., the student should be familiar with the complexities and intermeshing necessary in the approach to the interpretation and application of regulations within the legal systems of the United States.
(8) The student should be introduced to issues of regulatory power, corruption, and justice through a reading of Smith’s “The Morality of Regulation.”
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